FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v European City Guide SL [2009] FCA 1206

PRACTICE AND PROCEDURE – service of originating process abroad – Order 8 rule 3 Federal Court Rules – prima facie case

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v EUROPEAN CITY GUIDE SL

NSD 879 of 2009

MOORE J

28 October 2009

SYDNEY

THE COURT ORDERS THAT:

1.   The applicant be granted leave to serve the amended originating application and amended statement of claim in these proceedings and these orders, together with translated copies of those documents into the Spanish language, on the respondent in Spain by an agent appointed for this purpose by the applicant pursuant to Order 8 rule 3(2) of the Federal Court Rules.

2.   Time for service of the amended originating application and amended statement of claim and these orders be extended to 21 December 2009, or until such time as the Court otherwise orders pursuant to Order 4 rule 12 of the Federal Court Rules.

3.   Service of the notice of motion dated 2 September 2009 be dispensed with.

4.   The matter be adjourned to a further directions hearing at 9:30 on 15 December 2009.

5.   The parties have liberty to apply on short notice.

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                          This judgment concerns the question of whether the Australian Competition and Consumer Commission (ACCC) should be granted leave to serve originating process on the respondent abroad. For the following reasons, I have decided to grant leave.

2                          On 18 August 2009 the ACCC lodged an application and statement of claim seeking declarations under s 21 of the Federal Court of Australia Act 1976 (Cth) and injunctions and other orders under ss 80 and 86C of the Trade Practices Act 1974 (Cth) (the Act). The ACCC contended that the respondent, a company registered in Valencia, Spain, had contravened ss 52 and 53(aa), (c), (d) and (e) of the Act by causing to be published in Australia misleading and deceptive representations. These representations broadly concerned an online directory business listing service, including a business directory entitled 'Industry and Commerce' published on CD-ROM and on the internet. The ACCC contended the respondent sent a form to businesses and institutions in Australia to be completed and returned to the respondent. The respondent compiles the information to create the directory. The ACCC's case as initially formulated was:-

(i)         the form represented both that it was sent under the imprimatur of an Australian government agency and the information it sought had already been published on a register maintained by an agency affiliated with the Australian Government;

(ii)        it contained deliberate mistakes intended to prompt businesses to respond; and

(iii)        it failed to inform recipients that in signing and returning the form the businesses were liable to pay an amount between $1200 and $1600 annually with a minimum subscription of three years.

3                          Order 8 Rule 3(2) of the Federal Court Rules empowers the Court to grant leave to an applicant to serve originating process abroad, and states:

The Court may give leave to a party to serve an originating process on a person in a foreign country in accordance with a convention or the law of the foreign country, on such terms and conditions as it considers appropriate, if the Court is satisfied that:

(a)        the Court has jurisdiction in the proceeding; and

(b)        the proceeding is of a kind mentioned in rule 2; and

(c)        the person seeking leave has a prima facie case for the relief claimed by the person in the proceeding.

Rule 2 relevantly states:

Subject to rule 3 [above], an originating process may be served on a person in a foreign country in a proceeding which consists of, or includes, any 1 or more of the kinds of proceeding mentioned in the following table:

…

(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 damages suffered wholly or partly in Australia

…

(21) proceeding seeking an injunction ordering a person to do, or to refrain from doing, anything in Australia (whether or not damages are also sought).

4                          In the present case, an issue arose about the operation of Order 8 Rule 3(2)(c), in particular the threshold requirement that "a prima facie case for the relief claimed" be advanced by the applicant. This threshold is met where material is placed before the Court from which inferences are open which, if translated into findings of fact, would support the relief claimed: per French J in State of Western Australia v Vetter Trittler Pty Ltd (In liq) (Receiver and Manager Appointed) (1991) 30 FCR 102 at 110.

            The issue arose because I was not satisfied that applying this test to the aspect of the case as summarised in (I) set out earlier (see [2]), a prima facie case for the relief was demonstrated.

5                          The approach to be taken was discussed by Gray J in West v TWG Services Ltd [2009] FCA 1052. In that case, His Honour examined Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153. At [9], His Honour said:

"The court [in Bray] 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."

And at [25] His Honour said:

"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 in Bray to which I have referred."

            His Honour then proceeded to examine the application and the statement of claim. He found prima facie cases were made out in relation to some, but not all of the relief claimed. His Honour said at [60]:

"I have taken the view that the requirements of O 8 r 3(2)… are satisfied only in relation to [one of the statutory claims]. With respect to the relief sought on the basis of [another of the statutory claims], and on the basis of contract, the applicant does not have a prima facie case for that relief. This being the case, my view is that I should refuse the leave sought to serve the [originating process] on the respondent in England. To serve those documents in their present form would be to visit upon the respondent a proceeding in Australia involving a significant number of claims, with only a small number of those claims justifying the grant of leave for such service. Although technically the proceeding as a whole might fall within O 8 r 2 of the Federal Court Rules, because of the presence of the small number of claims, this is not enough to persuade me to exercise the discretion to permit service out of the jurisdiction in respect of the whole of the proceeding. To do so would be to allow the tail to wag the dog."

6                          Originally, there were three strands to the ACCC's case. The first two concerned the representation about the cost of the service and the mistakes contained in the forms. I am satisfied in relation to these matters that a prima facie case for the relief sought has been established. The third strand concerned the representation that the form was sent by an agency affiliated with the Australian Government. The ACCC's case was founded on three features of the form: the positioning of an Australian flag on the form; the reference in the form to a register; and the location and size of a disclaimer which said "European City Guide, SL, Martinez Cubells 6, 4, 8 - E.46002 Valencia – Fax: +34902363471. This company is not linked to the institutions or agencies of the Australian Government". I was not satisfied that, in respect of this matter, a prima facie case for relief was established.

7                          I indicated as much at a hearing on 24 September 2009. Following that hearing, an amended application and statement of claim were filed on 15 October 2009. They no longer raised the allegation that the form suggested it was issued by an agency affiliated with the Australian Government. A prima facie case is raised by the amended statement of claim for the relief sought in the amended application and the provisions of O 8 r 3 are otherwise satisfied.

8                          I accordingly grant leave to serve originating process abroad.

Associate:

Dated:         28 October 2009