Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Ltd & Ors [1995] FCA 878

Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Ltd & Ors [1995] FCA 878

Leave to appeal was refused because the Court was unable to identify error in Lindgren J's approach and, in any event, no real injustice would befall the applicant by allowing the order setting aside service to stand, since the applicant could make a fresh application for leave to serve the second respondent outside Australia and adduce further evidence of a prima facie case.

Jurisdiction
Australia
Judgment Date
26 May 1995
Procedural Posture
Notice of Motion Seeking Leave to Appeal From an Order Setting Aside Service of the Application Upon the Second Respondent / Ex Tempore Reasons on Leave Application
Outcome
Notice of motion dismissed.
Legal Topics
['leave to Appeal' 'setting Aside Service' 'service Outside Australia' 'prima Facie Case']
['civil Procedure'] ['leave to Appeal' 'setting Aside Service' 'service Outside Australia' 'prima Facie Case']

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Procedural Posture

Notice of Motion Seeking Leave to Appeal From an Order Setting Aside Service of the Application Upon the Second Respondent / Ex Tempore Reasons on Leave Application

Legal Issues

  1. 1 ["Whether leave should be granted to appeal from Lindgren J's order setting aside service upon the second respondent." 'Whether Lindgren J applied the wrong test for a prima facie case for the purposes of O 8 r 2(2)(c), as applied to O 9 r 7.' 'Whether alleged errors in assessing the evidence as sufficient to constitute a prima facie case justified leave to appeal.' 'Whether allowing the order to stand would cause real injustice to the applicant.']

Ratio Decidendi

Leave to appeal was refused because the Court was unable to identify error in Lindgren J's approach and, in any event, no real injustice would befall the applicant by allowing the order setting aside service to stand, since the applicant could make a fresh application for leave to serve the second respondent outside Australia and adduce further evidence of a prima facie case.

Court Disposition

Notice of motion dismissed.

Orders

  • ['The notice of motion is dismissed.' "The applicant pay the second respondent's costs of the motion."]