Webster Computer Systems Pty Limited v Fujitsu Ltd [2009] FCA 288

FEDERAL COURT OF AUSTRALIA

Webster Computer Systems Pty Limited v Fujitsu Ltd [2009] FCA 288

WEBSTER COMPUTER SYSTEMS PTY LIMITED (ACN 062 861 894) v FUJITSU LTD and FUJITSU AUSTRALIA LTD (ACN 001 011 427)

NSD 306 of 2007

GRAHAM J

2 MARCH 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 306 of 2007

BETWEEN: WEBSTER COMPUTER SYSTEMS PTY LIMITED (ACN 062 861 894)

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 2 March 2007 on the first respondent by using the diplomatic channel. 2. The directions hearing fixed for 9 June 2009 be vacated and places the matter 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 306 of 2007

BETWEEN: WEBSTER COMPUTER SYSTEMS PTY LIMITED (ACN 062 861 894)

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 an Application filed 2 March 2007. The address given for the first respondent, Fujitsu Limited, was Marunouchi Centre Building 6-1 Marunouchi 1-Chome Chiyoda–Ku, Tokyo Japan. The Application made claims seeking relief on the grounds stated in the accompanying Statement of Claim. That was a reference to a Statement of Claim filed 2 March 2007. The Application included a claim for interlocutory relief in the following terms: '1. The applicant have leave pursuant to Order 8 Rule 3(2) the Federal Court Rules to serve the application and statement of claim on the first respondent by using the diplomatic channel.' 2 On 9 May 2007, a former judge of the court, Conti J, made an order granting leave to the applicant, pursuant to Order 8 rule 3(2) of the Federal Court Rules, to serve the application and statement of claim on the first respondent by using the diplomatic channel. Unfortunately, the address selected by the applicant for the first respondent was incorrect. 3 On 24 February 2009 the applicant filed an Amended Application in which it identified as the address for the first respondent, 4-1-1 Kamikodanaka Nakaharo-Ku, Kawasaki City, Kanagawa 211-0053 Japan. The Amended Application included a claim for interlocutory relief. The interlocutory relief sought was that the applicant 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. The reference to the Amended Application was a reference to the Amended Application filed 24 February 2009 and the reference to the Statement of Claim, was a reference to the original Statement of Claim filed 2 March 2007. 4 Earlier today other proceedings were before the court in matter number NSD 1222 of 2007, in which the applicant was Anabelle Bits Pty Limited (ACN 068 649 972). The respondents in both matters have been the same, namely, Fujitsu Ltd and Fujitsu Australia Ltd (ACN 001 011 427). 5 The selection by the applicant of the erroneous address for Fujitsu Limited resulted from a disclosure to the Australian Securities and Investments Commission that Fujitsu Australia Limited was a wholly owned subsidiary of Fujitsu Limited and that the address of Fujitsu Limited was 'Marunouchi Centre Building 6-1 Marunouchi 1-Chome Chiyoda-Ku, Tokyo Japan'. The evidence presently before the court discloses that the correct address for the first respondent is, 4-1-1 Kamikodanaka Nakahara-Ku, Kawasaki City, Kanagawa 211-0053 Japan. 6 This matter was originally listed before Conti J as the docket judge. Upon his Honour's retirement, the matter was transferred to Cowdroy J's docket. Given the similarities between the two matters it was deemed expedient for the two matters to be listed before the one judge for case management purposes in the first instance. Accordingly, this matter has been listed before me for directions since 30 August 2007. 7 No order has, as yet, been made for the matter number 1222 of 2007 and this matter to be heard together, or any other order made for consolidation. Indeed, such an order may be inappropriate. However, it would appear that the factual basis for the claims made by the two applicants against Fujitsu Limited, are substantially similar. 8 Order 8, rule 3(2) of the Federal Court Rules 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.' 9 The evidence on the present application is the same evidence as that which was led before Conti J on 9 May 2007. Supplemented by a copy email which has become Exhibit AAW2 before me, and an affidavit of Stewart Alan Levitt, sworn 16 February 2009, and an affidavit of Brett Richard Imlay, sworn 24 February 2009. 10 I have had the advantage of reading the reasons for judgment of Conti J, which were handed down on 29 May 2007 (see Webster Computer Systems Pty Ltd v Fujitsu Ltd [2007] FCA 825). Without repeating the reasons for judgement expressed by me in Anabelle Bits Pty Ltd v Fujitsu Ltd [2007] FCA 1190 on 26 July 2007 and the further reasons given by me in relation to a similar application in that matter earlier today, it seems clear to me that there is sufficient material to indicate that the Court has jurisdiction in the proceeding number NSD 306 of 2007 and that the proceeding is of a kind mentioned in Order 8 rule 2. 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. 11 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 eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.