Conclusions
56 Contrary to Fujitsu Limited's submission, Lindgren J did not hold that a court could not be satisfied in respect of the matter covered by Order 8 rule 3(2)(c) of the Federal Court Rules unless the applicant satisfied the court that it had a prima facie case for 'the relief claimed by it' in the sense of each and every element of the relief claimed.
57 Apart from other considerations such a construction would be absurd. How, one might task, could a prima facie case for relief which is at the discretion of the court under s 87 of the Trade Practices Act or under s 51A of the Federal Court Act or for costs, be the subject of the requisite satisfaction.
58 Ho v Akai Pty Limited (in liquidation) (2006) 24 ACLC 1526 ('Ho') was an appeal from a judgment of Gyles J given under Order 9 rule 7 of the Federal Court Rules. The only issue before Gyles J was whether Akai Holdings and its liquidator had established a prima facie case for the relief sought in the proceeding against Mr Ho which satisfied Order 8 rule 3(2)(c) or its predecessor. Questions arose as to whether Mr Ho had a liability as a 'shadow director' and also whether he had a liability as an 'officer' of Akai Australia. Gyles J concluded that there was no sufficient basis for raising an arguable case that Mr Ho was a shadow director, but that there was an arguable case that he was an 'officer' of Akai Australia. Because of the construction given to Order 8 rule 3(2)(c), or its predecessor in Bray, the finding that there was a prima facie case that Ho was an officer of Akai had the consequence that he could be proceeded against on both the 'officer' and 'shadow director' bases, Gyles J having held that a prima facie case had been made out 'for the relief sought'. In Ho Finn, Weinberg and Rares JJ granted leave to appeal from the judgment of Gyles J but proceeded to dismiss each appeal. At [56] their Honours observed, by way of obiter dicta, that:
'…[A]ccording to Bray, it is not the similarity in elements of the cause of action that is brought into question for O 8 r 2(2)(c) purposes. Rather it is similarity in the relief sought.'
59 Finn, Weinberg and Rares JJ considered that the difference between the two types of claim for relief in insolvent trading cases did not reflect in substance merely a choice as to two different measures of compensation. They observed that the two species of relief served different purposes, had different statutorily prescribed measures and were required to be specified individually in an application, including an application served out of the jurisdiction. In those circumstances their Honours opined that relief sought under s 1317H of the Corporations Act 2001 (Cth) was not the same as that sought under s 588J (or for that matter s 588M). In addition, they described s 1317H as a general provision but s 588J (or s 588M) as a specific provision creating a remedy in a particular situation. They observed that the ordinary principle of statutory construction was that in cases in which ss 588J or 588M provided a remedy, s 1317H, being a general provision, would not apply. In the circumstances, Finn, Weinberg and Rares JJ doubted the correctness of Gyles J's conclusion that the principle in Bray's case would save the shadow director claim against Mr Ho from being struck out.
60 The observations so made were qualified by their Honours saying at [58]:
'However, because of the different conclusion we have reached in that claim to that of Gyles J, the views we have expressed above on the application of Bray have no actual consequence.'
61 In my opinion Ho is not authority for the proposition that satisfaction under Order 8 rule 3(2) cannot be reached unless an applicant has a prima facie case for each and every item of relief claimed in the proceeding. If, at an interlocutory stage, a prima facie case is made out for trade practices relief, it matters not whether that relief is ordered under s 82 or 87 of the Trade Practices Act or s 68 or s 72 of the Fair Trading Act. They provide choices in respect of the same conduct. In relation to claims for relief under s 87 of the Trade Practices Act and/or s 72 of the Fair Trading Act no greater specificity is required than is contained in the applicant's prayer for relief numbered 2 in its Amended Application.
62 The present case is not one where discrete relief is applicable for a particular contravention of one provision of the relevant legislation and different relief is applicable where there is a contravention of a different provision in the same legislation.
63 The first respondent's further submission that the applicant's claims for relief under the Trade Practices Act and/or the Fair Trading Act (NSW) ought not to be permitted, since the entirety of the wrongful conduct on its behalf, assuming it to be wrongful, occurred outside Australia, should be rejected.
64 The concession made by Fujitsu Limited that the brochure published and printed in English in the United States of America was made available for distribution in Australia by it and that it was involved in the use in Australia of that promotional material, coupled with Fujitsu Limited's provision to/making available of copies of the brochure in English printed by it in Japan, to Fujitsu Australia Limited, which disclosed that Fujitsu Australia Limited was Fujitsu Limited's 'local representative', is quite inconsistent with the first respondent's submission.
65 As Mason CJ, Deane, Dawson and Gaudron JJ said in Voth v Manildra Flour Mills Proprietary Ltd (1990) 171 CLR 538 at 568:
'If a statement is directed from one place to another place where it is known or even anticipated that it will be received by the [applicant], there is no difficulty in saying that the statement was, in substance, made at the place to which it was directed, whether or not it is there acted upon. …'
66 Contrary to the first respondent's submissions, Hunter Grain Pty Ltd v Hyundai Merchant Marine Co Ltd (1993) 117 ALR 507 ('Hunter Grain') does not support the first respondent's position. Hunter Grain was a decision of Sheppard J in a matter in which the Court had jurisdiction under the Admiralty Act 1988 (Cth). There were two defendants, the second being a company identified by the abbreviation 'Malaysian' and the first was Hyundai Merchant Marine Co Ltd ('Hyundai').
67 The second defendant owned the ship known as the 'Bunga Kenanga' and the first defendant was the charterer of that ship. The ship was also the subject of a voyage charter made between the first defendant and PS International Ltd of Indiana in the United States of America.
68 The case concerned the shipment of 3,352 tonnes of soyabean meal in bulk from Portland, Oregon, in the United States, to Brisbane. When the soyabean meal was loaded on to the ship it became contaminated by the introduction of a substantial quantity of soda ash (sodium carbonate) into the hold. The problem arose because there was a residue of soda ash in the loading equipment used to load the ship.
The shipper, PS International Ltd, was the vendor of the soyabean meal.
A clean bill of lading was signed by a person designated at 'Authorised Rep of Carrier or Master'. Under the heading 'Consignee' were typed the words 'To Shippers Order'. The plaintiff, Hunter Grain Pty Limited, was the party to be notified of the arrival of the ship. The bill of lading was endorsed to the plaintiff. Accordingly, it had transferred to it and vested in it all rights of action in respect of the goods as if the contract contained in the bill of lading had been made with it.
69 Sheppard J reached the conclusion that the contract of carriage had been made between PS International Ltd and Hyundai. The first defendant was neither registered in Australia nor was it a company which carried on business in Australia.
70 The plaintiff's bank received the clean bill of lading and, as instructed by the plaintiff, debited a payment to the plaintiff's account in favour of PS International Ltd.
71 Sheppard J held that the trade practices cause of action must fail because relevantly, the conduct of the first defendant and its agent concluded when the 'Authorised Rep of Carrier or Master' signed the bill of lading on behalf of the first defendant and sent it to the vendor, PS International Limited's forwarding agents in the United States.
The conduct said to be misleading or deceptive of which the plaintiff complained, so far as it concerned each of the defendants, was undertaken entirely in the United States. PS International Ltd was not a defendant. Whilst it was open to the Court to impute to Hyundai knowledge that the bill of lading would be used by the shipper to obtain payment for the cargo and Hyundai's employees and agents knew that it was important that the bill contain a clean receipt, otherwise the bank would not pay under the letter of credit, Sheppard J held that the relevant wrongful act in relation to the bill of lading was committed by PS International Ltd when it proffered the bill of lading to the plaintiff and its bank, which events did occur in Australia.
72 The present case is not one where the entirety of Fujitsu Limited's wrongful conduct, assuming it to be wrongful, occurred in Japan or other places in the world outside Australia. It was in Australia that Fujitsu Limited made its brochures, whether printed in the United States of America or Japan, available for proliferation amongst potential purchasers of Fujitsu MPG3 hard disk drives.
73 The final submission of the first respondent was to the effect that conduct engaged in by Mr Rixon in providing brochures about Fujitsu MPG3 hard disk drives and the making of representations in relation to them could not be said to be conduct engaged in on behalf of Fujitsu Limited. Even if this were correct, it would not assist the first respondent given that it made the brochures about Fujitsu MPG3 hard disk drives available in Australia to Fujitsu Australia Limited for proliferation amongst potential purchasers of its MPG3 hard disk drives.
74 In any event, I would respectfully adopt the view expressed by Lindgren J in NMFM Property Pty Ltd v Citibank Ltd (2000) 107 FCR 270 at [1244] which accorded with the view taken by Kiefel J in Lisciandro v Official Trustee in Bankruptcy [1995] ATPR 41-436 at 40,903-40,904. Lindgren J's view was that an act is done 'on behalf of' a corporation for the purpose of s 84(2) of the Trade Practices Act if, relevantly, the actor engaged in the conduct intending to do so 'for' the corporation. In this case it could be said that Mr Rixon handed over brochures provided by Fujitsu Limited to the applicant 'for' Fujitsu Limited, whose brochures they were, even though he was himself an employee of Fujitsu Australia Limited. Why else, one might ask, would Fujitsu Limited have made the brochures available in Australia if not to assist in promotion of the sale of its MPG3 hard disk drives?
It would seem to me that, on an interlocutory basis, it could be said that Mr Rixon's conduct was conduct engaged in with, at least, the implied consent of the director, servant or agent of Fujitsu Limited responsible for the promotion of the sale of Fujitsu MPG3 hard disk drives in Australia, sufficient to constitute Mr Rixon's conduct, conduct of Fujitsu Limited in accordance with s 84(2)(b) of the Trade Practices Act.
75 The fact that the contractual relationship between Fujitsu Limited and Fujitsu Australia Limited is that of 'independent seller and buyer' is irrelevant for the purpose of evaluating the consequences for Fujitsu Limited of Mr Rixon's conduct in proliferating Fujitsu Limited's brochures within Australia to potential purchasers from Fujitsu Australia Limited of Fujitsu MPG3 hard disk drives.
76 I am satisfied, on the evidence presently available, that Anabelle Bits Pty Ltd has a prima facie case for the relief claimed by it against Fujitsu Limited in the proceeding. Accordingly the first respondent's Notice of Motion filed 30 June 2009, seeking orders under Order 9 rule 7(1) of the Federal Court Rules, should be dismissed with costs.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.