Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Tiger Yacht Management Ltd v Morris [2019] FCAFC 8 Appeal from: Morris v McConaghy Australia Pty Ltd [2018] FCA 435
File number: NSD 293 of 2018
Judges: MCKERRACHER, DERRINGTON AND COLVIN JJ
Date of judgment: 5 February 2019
Catchwords: PRIVATE INTERNATIONAL LAW - application for leave to appeal against decision refusing to set aside order for service of originating application out of jurisdiction on foreign shareholder under Federal Court Rules 2011 (Cth) r 10.43 - shareholders' dispute involving individuals and companies incorporated outside Australia - where appellant is a shareholder in a foreign company which wholly owns Australian subsidiary - whether prima facie case that foreign shareholder has been carrying on business in Australia - where foreign shareholder is involved in management of affairs of Australian subsidiary - where prima facie case established that foreign shareholder carrying on business in Australia through management supervision of Australian business - consideration of the requirements to be met on an application brought under Federal Court Rules r 10.42 items 2, 15, 20, 23, 24(b) - circumstances in which service out of the jurisdiction may be ordered on the basis that foreign corporation is a necessary party for the purposes of Federal Court Rules r 10.24 item 20 PRIVATE INTERNATIONAL LAW - consideration of residual discretion to refuse leave to serve outside Australia under Federal Court Rules 2011 (Cth) r 10.43(4) - whether Australia clearly inappropriate forum - discussion of 'exorbitant' jurisdiction under English and Australian law in modern context - whether circumspection or caution should be exercised in making order - consideration of role of comity and principles of forum non conveniens - whether primary judge failed to consider factual matters advanced at trial PRACTICE AND PROCEDURE - where appeal concerns an interlocutory decision - whether appeal concerns questions of general principle - where outcome of interlocutory decision would have significant consequences for appellant - leave to appeal granted but appeal dismissed
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