Annabelle Bits Pty Ltd v Fujitsu Ltd [2009] FCA 287

FEDERAL COURT OF AUSTRALIA

Annabelle Bits Pty Ltd v Fujitsu Ltd [2009] FCA 287

ANNABELLE BITS PTY LTD (ACN 068 649 972) v FUJITSU LTD and FUJITSU AUSTRALIA LTD (ACN 001 011 427)

NSD 1222 of 2007

GRAHAM J

2 MARCH 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1222 of 2007

BETWEEN: ANNABELLE BITS PTY LTD (ACN 068 649 972)

Applicant

AND: FUJITSU LTD

First Respondent

FUJITSU AUSTRALIA LTD (ACN 001 011 427)

Second Respondent

JUDGE: GRAHAM J

DATE OF ORDER: 2 MARCH 2009

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The applicant have leave pursuant to Order 8 rule 2(3) of the Federal Court Rules to serve the Amended Application filed 24 February 2009 and the Statement of Claim filed 29 June 2007 on the first respondent by using the diplomatic channel. 2. The directions hearing fixed for 9 June 2009 be vacated and the matter be placed in the list for directions at 9:30am on Monday 15 June 2009 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. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1222 of 2007

BETWEEN: ANNABELLE BITS PTY LTD (ACN 068 649 972)

Applicant

AND: FUJITSU LTD

First Respondent

FUJITSU AUSTRALIA LTD (ACN 001 011 427)

Second Respondent

JUDGE: GRAHAM J

DATE: 2 MARCH 2009

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 These proceedings were commenced by the filing of an Application on 29 June 2007. That application referred to an accompanying Statement of Claim, which was filed on 29 June 2007. The original application included a claim for interlocutory relief, pursuant to Order 8, rule 3(2) of the Federal Court Rules, which provides, as follows: '3(2) 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.' 2 The application for interlocutory relief sought in the original application, filed 29 June 2007, came before the Court on 19 July 2007 and, again, on 26 July 2007. The evidence before the Court on the last occasion consisted of an affidavit of Kenneth Lowe, sworn 18 July 2007 and an affidavit of Frederic Alfred Joseph Cassis, sworn 25 July 2007. Exhibit KL1 to the affidavit of Mr Lowe was tendered and became exhibit AA1 on the application. 3 On 26 July 2007, the Court granted leave to the applicant, pursuant to Order 8, rule 3(2) of the Federal Court Rules, to serve the Application and the Statement of Claim on the first respondent by using the diplomatic channel. 4 The address chosen for the first respondent was Marunouchi Centre Building, 6-1 Marunouchi, 1-Chome Chiyoda-ku, Tokyo Japan. That address was selected for the first respondent in circumstances where it was disclosed in a search made at the Australian Securities and Investments Commission on 3 April 2007 that the second respondent, Fujitsu Australia Limited, was a wholly-owned subsidiary of Fujitsu Limited and the address given, apparently, by Fujitsu Australia Limited for its parent was the address included in the Application, as filed on 29 June 2007. As it transpires, the applicant was unsuccessful in securing service of the Application by means of the diplomatic channel at the address mentioned. The evidence now before the Court suggests that the correct address for the first respondent is 4-1-1 Kamikodanaka, Nakahara-ku, Kawasaki City, Kanagawa 211-0053 Japan. 5 In the circumstances, the applicant has filed an Amended Application, on 24 February 2009, showing the address of the first respondent as the address which I have just mentioned. In the Amended Application, a further claim for interlocutory relief has been made. The order sought by the applicant is that it have leave, pursuant to Order 8, rule 3(2) of the Federal Court Rules to serve the Amended Application and Statement of Claim on the first respondent by using the diplomatic channel. I understand the reference to the Statement of Claim to be a reference to the original Statement of Claim, filed 29 June 2007. 6 On 26 July 2007, I delivered reasons for judgment in support of the order, which I then made, in relation to service of the original Application and the Statement of Claim by using the diplomatic channel. I will not take time to repeat the matters which were mentioned in those earlier reasons (see Anabelle Bits Pty Ltd v Fujitsu Ltd [2007] FCA 1190). In the case before me, there is sufficient material to indicate that the Court has jurisdiction in the proceeding and that the proceeding is of a kind mentioned in Order 8, rule 2. 7 Evidence from the Commonwealth Attorney-General's Department demonstrates that: 'There is no Convention, treaty or other agreement in force between Australia and Japan on the service of documents in civil proceedings.' 8 I am satisfied in respect of each of the matters covered by Order 8, rule 3(2)(a), (b) and (c). I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.