AUSTRALIA Law and Practice Contributed by: Joachim Delaney and Ranjani Sundar, HFW
Joinder of Parties Each state has different civil procedure legisla - tion governing the joinder of parties, including foreign entities or individuals. In NSW, Rule 6.24 of the UCPR provides the fol - lowing. “(1) If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determina- tion of all matters in dispute in any proceedings, the court may order that the person be joined as a party; (2) Without limiting subrule (1), in proceedings for the possession of land, the court may order that a person (not being a party to the proceedings) who is in possession of the whole or any part of the land (whether in person or by a tenant) be added as a defendant.” Additionally, individuals can apply to the court to be joined as a plaintiff or defendant (UCPR r 6.27) depending on the circumstances. Extraterritorial Jurisdiction Australian courts may exercise extraterritorial jurisdiction if expressly provided by the law. The Corporations Act 2001 (Cth) does not con - tain an express provision on extraterritorial appli - cation. However, Section 581 of the Corpora - tions Act 2001 (Cth) mandates Australian courts to act as an aid of, or an auxiliary to, foreign courts of prescribed countries (see Corporations Regulations 2001 (Cth) reg 5.6.74) that have jurisdiction in external administration matters. Australian courts also have discretion to assist the courts of non-prescribed countries in exter - nal administration matters.
However, certain provisions of the Competition and Consumer Act 2010 (Cth) do have extra - territorial effect. For instance, Section 5(1) of the Competition and Consumer Act 2010 (Cth) states that certain provisions of legislation, including the ACL (save for Part 5-3), extend to the engaging of conduct outside Australia by bodies corporate incorporated or carrying on business within Australia, Australian citizens, or persons ordinarily resident within Australia. In Valve Corporation v Australian Competition and Consumer Commission [2017] 351 ALR 584, the Federal Court found that the consumer guarantee regime in the ACL was applicable to a company that conducted its business in a for - eign jurisdiction and where the proper law of the contract was also of a foreign jurisdiction. The Federal Court noted that Section 67(b) of the ACL expressly provides that the consumer guar - antee regime applies to the conduct of foreign corporations in Australia, even if a law other than Australian law had been chosen to govern the contract for the supply of goods and services to a consumer. The Federal Court also found, inter alia, that despite the foreign corporation being incorporated outside of and not having a physical presence in Australia, the representa - tions it made to its large base of Australian con - sumers through its online platform nonetheless amounted to the “supply of goods” (ie, computer software) within Australia, which meant that the foreign company “undoubtedly carried on a busi- ness in Australia” (Valve Corporation v Australian Competition and Consumer Commission [2017] 351 ALR 584, 607 [86]). It should be noted that despite the express intention of Parliament for a legislation to have extraterritorial effect, this would neither deter a foreign party from objecting to the jurisdiction of
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