lis "NEW SOUTH WALES DISTRICT REGISTRY > a JUDGMENT No. 660 Teen ftv <Lgo FOR GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA No. G 338 of 1987 wee enw 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 ne cota oe oe a wren oo see eos oy ' hep oer 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 approach and after all seeking leave to serve outside the jurisdiction. I would agree with the orders which have been proposed. Waser stove ne cet ere wh owes = soe Bay Sap ree xy > nr eg een nt ee re ere ee oy Counsel for the Appellant: Solicitors for the Appellant: Counsel for the second and third Respondents: Solicitors for the second and third Respondents: Dates of hearing: Date yudgment delivered: Dr) T certify that this and the two (2) preceding pages are a true copy of the Reasons for Judgment of the Court." Associate: S. Kotlro— / Date: 1 October 1987 Mallesons &-Stephen Jaques C.A. Sweeney N. Manousaridis Baker & McKenzie Sydney: 1 October 1987 Sydney: 1 October 1987 weep ee eee se Ne te er er eee + ya ote . > was ts . ve ~ Te aay roms mer pT ren J UDGMENT No. bso. / 3 "WOT FOR GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G 338 of 1987 GENERAL DIVISION ON APPEAL from a sinagle Judge of the Federal Court of Australia BETWEEN : AMALGAMATED WIRELESS AUSTRALASIA PTY. LIMITED Appellant AND: McDONNELL DOUGLAS CORPORATION and OTHERS Responde CORAM: FOX, DAVIES AND SHEPPARD JJ. by Ly J " 230CT1987 FEDERAL COURT OF REASONS FOR JUDGMENT A AeNGIPAL EX TEMPORE REGISTRY DATE: 1 OCTOBER 19987 { t + 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 alreadv effected service or substituted service under 0.7. This would be an unusual course. but one can pres sa ery emn - Spore Gy. Counsel for the Appellant: Solicitors for the Appellant: Counsel for the second and third Respondents: Solicitors for the second and third Respondents: Dates of hearing: Date judgment delivered: IT certifv that this and the two (2) preceding pages are a true copy of the Reasons for Judgment of the Court. Associate: S. Kotlae— Date: 1 October 1987 Mallesons & Stephen Jaques C.A. Sweeney N. Manousaridis Baker & McKenzie Sydney: 1 October 1987 Sydney: 1 October 1987 aca a ree, a ern IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G 338 of 1987 ) GENERAL DIVISION ) ON APPEAL from a sinagle Judge of the Federal Court of Australia BETWEEN: AMALGAMATED WIRELESS AUSTRALASTA PTY. LIMITED Appellant AND: McDONNELL DOUGLAS CORPORATION and OTHERS CORAM: FOX, DAVIES AND SHEPPARD JJ. "iN J DATE: 1 OCTOBER 1987 230CT 1987 \ FEDERAL cout OF f REASONS FOR JUDGMENT | Anciea AS EX_TEMPORE ONL sesistry FOX J. 7 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 alreadv effected service or substituted service under 90.7. This would be an unusual course, but one can een fe y + . By 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 ¢ 2 provide the court with a wide discretion to determine whether or not it should qrant 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 approach and after all seeking leave to serve outside the jurisdiction. I would aqree with the orders which have been proposed. we ern, wegen ee 3 2 - epocan Counsel for the Appellant: Solicitors for the Appellant: Counsel for the second and third Respondents: Solicitors for the second and third Respondents: Dates of hearing: Date judgment delivered: fad T certifv that this and the two (2) preceding pages are a Lrue copy of the Reasons for Judgment of the Court. Associate: S. Cotne— Date: 1 October 1987 Mallesons & Stephen Jaques C.A. Sweeney N. Manousaridis Baker & McKenzie Sydney: 1 October 1987 Sydney: 1 October 1987 ialed sellers ey -r