Carnegie Corporation Limited v Pursuit Dynamics Plc [2007] FCA 1010

Carnegie Corporation Limited v Pursuit Dynamics Plc [2007] FCA 1010

The application for preliminary discovery does not fall within an originating process in a proceeding of the kind specified for service out under O 8 r 2 of the Federal Court Rules. Even if the power to grant leave existed, the discretionary factors, including the express choice of English law and jurisdiction, support refusal of leave to serve out. Accordingly, the application is dismissed.

Parties
Applicant: Carnegie Corporation Limited; Applicant: New Millenium Engineering Pty Limited; Applicant: Alan Robert Burns; Respondent: Pursuit Dynamics Plc; Respondent: Pursuit Marine Drive Limited
Jurisdiction
Australia
Judgment Date
04 July 2007
Procedural Posture
Motion for Leave to Serve Application for Preliminary Discovery Out of Jurisdiction / Interlocutory
Outcome
Application dismissed
Legal Topics
Preliminary Discovery, Service Out of Jurisdiction, Royalty Obligations, Choice of Law, Jurisdiction, Breach of Contract
Practice and Procedure Contract Law Intellectual Property Law Preliminary Discovery Service Out of Jurisdiction Royalty Obligations Choice of Law Jurisdiction +1 more

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Parties

Carnegie Corporation Limited

Applicant

New Millenium Engineering Pty Limited

Applicant

Alan Robert Burns

Applicant

Pursuit Dynamics Plc

Respondent

Pursuit Marine Drive Limited

Respondent

Procedural Posture

Motion for Leave to Serve Application for Preliminary Discovery Out of Jurisdiction / Interlocutory

Legal Issues

  1. 1 Whether the court has power to grant leave to serve an application for preliminary discovery out of the jurisdiction under O 8 of the Federal Court Rules
  2. 2 Whether an application for preliminary discovery constitutes an 'originating process' under the Federal Court Rules
  3. 3 Whether discretionary considerations warrant refusal of leave to serve the application out of the jurisdiction

Ratio Decidendi

The application for preliminary discovery does not fall within an originating process in a proceeding of the kind specified for service out under O 8 r 2 of the Federal Court Rules. Even if the power to grant leave existed, the discretionary factors, including the express choice of English law and jurisdiction, support refusal of leave to serve out. Accordingly, the application is dismissed.

Court Disposition

Application dismissed

Orders

  • The applicants' motion filed 25 May 2007 is dismissed.