- 45 -
of dollars per month by Valve to the Australian bank account of an Australian company (Equinix).
164 These matters are the background to the core focus which is upon whether Valve's representations can be described as having been made in Australia.
165 Valve's submission that its representations were not made in Australia relied heavily upon a submission that the representations were not directed to anyone in Australia. In this regard Valve referred to the decision of Merkel J in Bray v F Hoffman-La Roche Ltd [2002] FCA 243; (2002) 118 FCR 1.
166 In Bray, a representative proceeding was brought for breach of s 45 of the Trade Practices Act as a consequence of cartel conduct. The respondents denied that the Court had jurisdiction. They sought to set aside service of the originating process on them. One question was whether the respondents had engaged in conduct in Australia. Counsel for both parties in this case referred to various passages of the decision of Merkel J and it was not suggested that anything said on the appeal to the Full Federal Court had affected these passages (Bray v F Hoffmann-La Roche Ltd [2003] FCAFC 153; (2003) 130 FCR 317).
167 In the course of considering whether the conduct of the respondents was "in Australia", Merkel J, at 45 [145]–[147], considered the location of communications implementing the cartel arrangement. His Honour referred to the decision in Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538, 567–568. In that case, a joint judgment of Mason CJ, Deane, Dawson, and Gaudron JJ in the majority said at 568:
But in every case the place to be assigned to a statement initiated in one place and received in another is a matter to be determined by reference to the events and by asking, as laid down in Distillers, where, in substance, the act took place.
168 The reference to Distillers was a reference to the decision of Lord Pearson, speaking for the Judicial Committee of the Privy Council on appeal from the Court of Appeal of the Supreme Court of New South Wales, in Distillers Co (Biochemicals) Ltd v Thompson [1971] 2 WLR 441; [1971] AC 458. That case concerned the meaning of "cause of action" in s 18(4) of the Common Law Procedure Act 1899 (NSW). The Privy Council held that it meant "the act on behalf of the defendant which gave the plaintiff his cause of complaint" (468). In applying this test, the Privy Council in Distillers affirmed the approach in Jackson v Spittall (1870) LR 5 CP 542. In that case, five judges of the Court of Common Pleas considered the meaning of the words "cause of action that arose within the jurisdiction". At 552, their Honours
