Administrator _________________________________
Your stamp and signature for acceptance"
This document was, on 12 August 2003, returned by fax from Emrich to Schib with initials in the place for stamp and signature for acceptance, and one handwritten notation under the heading Technical Details, Electrical Requirements, where the electrical requirement "four wires" had been amended with the written words "five wires (plus neutral and earth)" added in handwriting and the same initials.
12 On the basis of this material, the judge said that she did not accept that the forwarding of the countersigned document on 12 August 2003 was the last stage of the acceptance of the contract. Instead, her Honour upheld Emrich's submission that the contract was accepted by the previous document dated 2 July, faxed by Schib to Emrich. The judge said that the return of the document on 12 August "was just confirmation that the contract had been formed", and that she was reinforced in her decision by the fact that there was a six-week gap between the two facsimiles. In the circumstances her Honour said that it was strongly arguable that the contract was made in Victoria as required by r.7.01(1)(f)(i) of the Rules of Court.
13 The written submissions of the parties to this Court show that there is no dispute between them as to the documentation or the written terms of the contract. Mr Clarke for Schib argued that the documentation shows that the contract was not formed until Emrich confirmed its acceptance of Schib's counter offer by executing and sending by facsimile the terms of that counter offer from Melbourne to Italy on 12 August 2003. He relied on the agreed proposition that the contract is made when the last act necessary to create a binding contractual obligation took place within the jurisdiction, and that, where a contract is concluded as a result of instantaneous means of communication, it is made where the acceptance is received. Accordingly he argued that the contract was made in Italy and that Emrich is unable to show a strongly arguable case that the contract was made within Victoria. He submitted that the County Court judge's decision was therefore wrong, that the court lacked jurisdiction over Schib in respect of the action, and service out of the jurisdiction was not authorised by r.7.01(1). Accordingly the judge should have set aside the writ or alternatively set aside service of the writ in accordance with r.7.05 or r.8.09 of the Rules.
14 In this Court Mr Clarke argued that the document of 2 July was not an unqualified acceptance of Emrich's order of 19 June and argued that this was shown not only by the document's terms, but also by reference to what were said to be differences between the terms of the document of 2 July and those of the document of 2 April relating to the dimensions of the product ordered, the speed of operation, terms of payment, time of delivery date, and packing of the product. He submitted that this showed that the document of 2 July must be taken to be a counter offer. He relied on Howes v. Miller[4] and Lewis Construction Co Pty Ltd v. Tichauer S/A[5]. This, however, was not the way in which the matter was argued before the judge. We were told that none of these differences were put to her Honour. Instead, counsel for Schib merely argued that "Exhibit AJC.9 to the affidavit of Andrew John Cheetham sworn 22 June 2005 shows that the contract was not formed until the plaintiff confirmed its acceptance of the defendant's counter offer in varied terms by executing and sending by facsimile the terms of that counter offer from Melbourne to Italy on 12 August 2003". The reference to "in varied terms" might simply mean the handwritten alteration to the facsimile of 12 August, or an elliptical reference to other alterations in the facsimile of 2 July, but there was no explanation in argument of this distinction, if the latter was intended.
15 Mr Wheelahan for Emrich argued today that, if these matters had been raised before her Honour, Emrich would have relied on Article 19 of the Vienna Convention, to which Italy and Australia are both parties, and which is part of Victorian domestic law. Furthermore, although counsel for Schib did argue below that the contract was not concluded until the facsimile of 12 August was sent, no attempt was made to withdraw the statements contained in Mr Cheetham's affidavit of 22 June, and to which I shall refer shortly.
16 In my view, Schib should not now be permitted to depart from the way in which the arguments were addressed to her Honour or to rely on the matters raised here by Mr Clarke in relation to the differences between the documents of 2 April and 2 July. Some of these differences must inevitably have sprung from requests orally made by representatives of Emrich to Schib, and probably before Emrich's order of 19 June was sent to Schib, as is shown by the addition of a new item, and the increase in price in euros between Schib's communication of 2 April and Emrich's offer of 19 June. Had these differences now mentioned by Mr Clarke been raised before the judge, Emrich would have been entitled to submit further affidavit material to the court dealing with the substance of these oral negotiations.
17 Mr Wheelahan argued that the judge had correctly held that the contract was made within Victoria. He submitted that on the evidence there was no dispute that on 2 July 2003 a contract came into existence when Schib sent its acceptance to Emrich in Victoria by fax dated 2 July 2003 and Schib then acted on that acceptance. Accordingly, the applicant's fax of that date was received by the respondent in Victoria and the contract, being made by instantaneous communication, was thereby made in Victoria. Mr Wheelahan also submitted that Schib's request in the fax of 2 July that Emrich countersign and return a copy of the order confirmation was no more than a request for confirmation of a contract which was already on foot as from 2 July and upon which Schib had already acted.
18 In my opinion the judge was entitled to conclude that Emrich had made out a strongly arguable case that the contract was made in Victoria when Emrich received Schib's facsimile dated 2 July 2003. That document in terms acknowledged receipt of Emrich's "captioned order" and stated that Schib was pleased to confirm Emrich's order. The price mentioned was the price Emrich had offered in its previous communication of 19 June. The judge was entitled to infer from the correspondence that there had been oral communications beforehand between Emrich and Paolo Formilan of Schib. It is noteworthy that Schib's solicitor, Andrew John Cheetham, in his affidavit of 22 June 2005 made after instructions had been taken from Schib, swore that the documents confirmed that Schib by its facsimile of 2 July "then accepted the plaintiff's counter offer to purchase an 'automatic line for wrap soap with an additional reel splicer on 2nd film reel holder' in the sum of 135,850 euros net", and "the defendant further evidenced acceptance of the plaintiff's counter offer by acting on the acceptance". Mr Cheetham in his affidavit added "the plaintiff [Emrich] confirmed the acceptance by facsimile dated 12 August 2003". I do not take these comments as an admission of law but rather as an acknowledgement, by a solicitor after having taken instructions from his client Schib, that no matter of substance remained in negotiation between Schib and Emrich after 2 July 2003. On this basis the contract was, I think, made on 2 July and the judge was correct in concluding that it was strongly arguable also that the last communication of 12 August 2003 was merely confirmation that the contract had already been concluded.