Amalgamated Wireless Australasia Pty Ltd v McDonnell Douglas Corporation & Ors [1987] FCA 650

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JUDGMENT No. 660 Teen ftv <Lgo FOR GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

No. G 338 of 1987

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GENERAL DIVISION

. ON APPEAL from a single Judge of the Federal Court of Australia

BETWEEN :

AMALGAMATED WIRELESS AUSTRALASIA PTY. LIMITED

Appellant AND:

McDONNELL DOUGLAS CORPORATION and OTHERS

CORAM: FOX, DAVIES AND SHEPPARD JJ. DATE: 1 OCTOBER 1987 23 0CT 1987 TEOERUSTRALIA REASONS FOR JUDGMENT Amana, EX TEMPORE . RESISTRY FOX J.

In this matter the appellant seeks leave to appeal from

an order made by Northrop J. In my view leave should be granted.

and I can proceed at once to say something about the appeal.

The question really at issue is whether a party should be able to effect service in accordance with 0.8 of the rules of this court, having already effected service or substituted

service under 90.7. This would be an unusual course. but one can

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see that there may well be circumstances in which it is advisable for a party to adopt the course so that any question arising out of what was done in relation to-or under 0.7 can be cured by what

is done under 0.8.

In my view, therefore, the appeal against Northrop J's

decision, wherein he felt that both courses could not be adopted;

should be allowed, and the matter should be remitted to a single

judge of this court to be dealt with in accordance with 0.8.

DAVIES J:

I am of the same opinion.

SHEPPARD J:

I also am of the same opinion, and I would only add that it seems to me that the provisions of 0.8 r 2 provide the court with a wide discretion to determine whether or not it should grant leave to serve originating process outside the Commonwealth. The fact that there is an existing order for service which may have been complied with is a factor. but I cannot regard it, as the learned primary Judge did, as a factor so cogent that it disqualified an applicant who may be concerned about the validity of service under 0.7, particularly if he has obtained an order for substituted service, from taking a cautious