aed $ & S WOT FOR DISTRIBUTION IN THE FEDERAL COURT GF AUSTRALIA VICTORIA DISTRICT REGISTRY Vv. No. G 302 of 1304 GENERAL DIVISION BETWEEN: RITCH ENGINEERING PITY. LTD. Applicant and MULTIGO INTERNATIONAL FT. LTD., BRIE BARTHOLGMEN HAYES and GEGRGE KOSMUS TETIS Respondents COURT: NORTHROF J. DATE: 24 SEPTEMBER 1365 PLACE: MELBOURNE ~4N FEDERAL GouRT AUSTRALIA OF io . en PRINCIPAL ' ¢ REI . ~ GISTRY Af 2, * : > NS <at> EX TEMPORE REASONS FOR JUDGMENT This is a motion brought on behalf of the respondents seeking orders that the proceeding herein be stayed, or dismissed, on the grounds that no reasonable causé of action is disclosed, the proceeding is frivolous and i cess a vexatious, or that the proceeding 15 an abuse of the pr E au or the Court. Alternatively, the respondents seek an ord that the Statement 6f Claim be struck out on the grounds that it discloses no reasonable cause of action, has a tendency to cause prejudice, embarrassment cr delay in the proceeding, or rome oo . Seon ot i be } ' ts Ls otherwise an abuse of the procass ur the tourt. The mobicn 25 based upon U.11L c.lé and possibly also upon U.20 t.z. The substance of Ehe argument submitced in support of the motion 15 that looking at the Statement of Claim, in particular paragraph 5, 16 appears that the conduct complained of occurred in the United Kingdom. It should also be noted that paragraph 7 of the Statement of Claim contains an allegation that the representations and statements referred to in paragraph 6 of the Statement or Claim, which is a paragraph alleging that the tepresentations and statements set out in paragraph 5 were false, misleading, and deceptive, were Made by the respondents in the course of trade or commerce within Australia, or between Australia and places outside Australia. No particulars were sought of paragraph 5 of the Statement of Claim, put counsel appearing have, by consent, treated an answér to interiogatories sworn on behalr of the applicant as being particulars to paragraph &. Acting on that concession, and looking at that answer, it appears that the representations and statements were partly oral, and partly in writing. Insofar as they were oral, they comprised telephone conversations between named persons, including the principal of a company incorporated in the United Kingdom, and also conversations which took place in the United Kingdon subsequentiy to the telephone conversations. Insofar as the representations were in writing, they were contained in letters from the respondents to persons in the United Kingdom a — - eee oe ' ae dest awerr ern reer m7 tg preemie oe la and a reply. There 15 an ambiguity in the answer in chat 1b as not clear whether the telephone conversations took place between the United Kingdom and Australia or solely within the United Kingdom, although it appears that the correspondence did proceed between Australia and the United Kingdon. Counsel for the respondents referred to the wording of 5.52 of the Trade Practices Act 1974 and the definition of trade of commerce contained in s.4 of the Act, which definition is based upon the provisions of the Conscitution giving power to the Commonwealth cto make laws with respect to trade or commerce. In the Act, the phrase "trade oc commerce" means "trade or commerce within Australia or between Australia and places outside Australia". Counsel also referred to sub-section S(1)i of the Act which provides, for relevant purposes, that Part V extends to the engaging in conduct outside Australia by bodies corporate incorporated or carrying on business within Australia or by Australian citizens or persons ordinarily vesident within Australia. It should be noted further, that, in the amended defence, the respondents deny the representation in the statements contained in paragraph 5, and they also deny each and every allegation contained in paragraph 7 of the Statement of Claim. It follows From what has been said, that an issue has been raised by the pleadings as to whether the representation and statements referred to in the Statement of ae iy te pe re ee ee ee wi , mT TE ws faa ony - - nN me rts sep rege vpn af ons ocr ore ere eee ene et 1 . > Claims were un the course of trade o4 commarce within o co Australia or between Australia and places outside Australia. This 1ssue raises fairly and squarely Ehe matters which have been argued today on the motion and in particular the application to 5.52 of the Act of the definition of trade or commerce and the effect of 5.5 of the Trade Practices Act. In this matter the whole application is ready for trial, and in fact, the trial of the proceeding has been set down for hearing to commence next week. The pleadings have been completed and all interlocutory steps have been completed. There are practical problems in relation to witnesses, some of whom are in the United Kingdom and will be required to be brought to Australia to give evidence if the action do#s proceed. In these circumstances, the parties did desire a ruling of the Court as to the question of whether the Court had jurisdiction to hear this matter having regard fo the questions raised by the pleadings in relation to the extra territorial effect of the legislation or application of the legislation to the facts of this case. A Court does not exercise the power to strike out or stay an action or Statement of Claim in cases where disputed questions of fact might arise, or in cases which are otherwise of doubtful outcome. The power is to be exercised ina number of different ways; see General Steel Industries Inc. v. Commissioner for Railways iN.5.W.) 112 C.L.R. 125 at 128-9 in which the then Chief Justice expresses the test to be applied. a eos renin tdtaendiee dilietaenate Lunia ae techantaiianetiete Vo een eee a, Pay ye tory pee ee rs ort toate mo ep cee In the present case, a question will arise of a factual kind as to just where these conversations by telephone took place. On the material before the Court, and relying upon the answer to interrogatories as a particular, the Court 15 unable to form any view on this question of fact which is essential for a consideration of the legal principles to be applied. In these circumstances and having regard to the desire of the parties, the Court should not express any views on the question of law involved in the absence of being abla to ascertain what are the facts. Further, having regard to the fact that this is an issue raised by the pleadings and which will depend upon facts proved at the trial, it would be inappropriate for the Court to grant the orders sought by the respondents. These are matters which, of necessity, will be raised at the trial and shall be dealt with then after the Facts have been ascertained. Accordingly, the motion is refused with costs. The formal order is that the motion is refused with costs. A, Se ts - SR ed oe gt 7 - coni'y bet Cvs and the fovve ( > aie 2 tae cony of the easons fut t Coe Wardle, | a -eco ec eee ee ees eee ree ees ee ne ae a a fu