John Fairfax & Sons Pty. Ltd v E. C. De Witt & Company (Australia) Pty. Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE JENKINS |
| Judgment Date | 18 October 1957 |
| Judgment citation (vLex) | [1957] EWCA Civ J1018-2 |
| Court | Court of Appeal |
| Date | 18 October 1957 |
[1957] EWCA Civ J1018-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Jenkins,
Lord Justice Parker And
Lord Justice Pearce.
Mr. Stephen Chapman. Q.C. and Mr. M.J. Turner(for Mr. J. Stepherson) 9instrudted by Messrs. Benry Panfray & Son,)appeared on behalf, of the Appellaqnts.
Mr, R. W. Goff. Q.C. and Mr. E. J. Astell Burt instrusted by messrs. Bell, Brederisk & Gray,) appeared on behaf of the Respendents.
: This is an appeal with the leave of the justice free an order of Mr. Justice German dated 15th February, 1957 as far only as it ralates to a cartain matter of costs. The question arices out of a tangle of l;itigation which aress in these eire. The if I may SS deseribe them, were E. C. as witt & company (Australia) Pty. L.t.d. an Accvtralian company with an office in Londan, which is a of American Company and the business of which of marketing various prepiesary preparations with which the Amrican compay deals all over the world. This company has been refered to in the case as Do witts. Next there is johan fairfex & son preprietery in syinay, New South , but with an office in Loanden They are the preprieters of the the and the Thirdly there is an English company whosed histery I need not go into, but which I understand to have taken ever the evercess busines of an company. Its is Limited (referred to in the case as ), and on whatis now called the business of advertising prastitoners.
It appears that Do witts were minded to secure publicity for their goods in the Australian papars. They become the edvarting who engaged for reward to see that these goods were suitably represented in the apperiats advertsing medin of which by far the meet important of course is There is no dout that placed a large of in of Do witts goods with about large number of different I think the come to something like differtent newepaper or newwpaper preprietors. difficulties and the was the not paid for the which On the 19th November 1953 into It appared therefore that if were responsible for the amount expemded on advertiaing the amount expended on advertiaing the newspaper probably would not get anything approesthing the full amount due to them It was therefore important for the newspapere to if they could about direst claim De witts. On the ether hand it was no doubt the duty of the liquidntor of to get in all the maney to which that company might be in respect of these advertising .
The litigation began, it would seem, on the 15th April, 1994, when issued a writ against Da WittS claiming tho amount of the expeness had inourred on advertising is tha Australian praas A number of othar claims eserged and the real contest which arose was an the quattro whether , is doing this advertising work, were as principals to whom the newspaper proprietors could look for peyote, or as the other head ware sating as agents for- Do witte as that the newspapar proprietors aoudad establish a direot claim against Be Witt In the result other litigatians was Fairfax issued a on the 6th May, 1954, is the Matropolitan District Court of New South Wales claiming, I think, a sum of £360 which was the amount due to Fairfax in reappear of come of this advertising. That was a small propertion of the total is issue, If one is all the trasaaetions with all the newapapere on that the total amount involved was upwards of £14,000.
In those circumstances De Witts sight be said to have bean between two firaa, aad accordingly on tha 22nd June, 1954, they issued an interpleader in the and is that a formidable total of over 100 newepapera were It become obvious to the legal advieera of tha various parties cenoemed that it would hardly be praotioable to deal with these interpleader prooeedlage is the ordinary way, is view of tha vary large number of people Accordingly, after some negotiations an order was made by consent on the 17th June, 1955 on the interpleader is section That concent order so far asd I need refer to it is in these 1 Proceedings will be brought is brought English De witt by representative Claimants represented by leasers Bell, & Grey and Messers. Pethecary a Barratt including at least) one Claimand who is a mamber of the Australian newspaper Proprietors Association and or the Australian Newapepers Advertising Control Board and at lost one clamimand who has proved in the liquidation of Messrs. & Co Ltd. Then there was a provision about the of service and a provision that & The said Then proceedings will be ordered to be listed and tried triad together with the existing against Claiaaata will aceept the decision In the proceedings as of the right and liabilities In their caese, alao De witta similarly will accept the decision as conclusive Right of appeal, however, to be open to all parties 6 The pending preceeding in Australia by Fairfax Proprietor Co Ltd, agleam Be Witt will be stayed indefinitely the coste thereof being borne by the Plaintiff or the Defendant therein in with the result of the proeeedlaga It is ordered-(a) that the Interpleader Summons be adjourned sine die subject, however to the following (b) that the coste of the Interpleader proeeedlaga be reversed to the Judge who tries the actions (a) That so witta have liberty to apply for an Order barring e by any Claimant who have been served bat have ot appeared (d) liberty to all parties to apply to restore tha Summons is the event of any failure to carry out any of the of the above Agreement".
In pursuance, though, It would seen in anticipation of the of the order, Fairfax laud a writ aganst Da witte on the 2nd May, 1955, their clsim being franed on the basis that were agents for Ds witts that section and one other were I think the only section stared in averted is of the in too order She ether was an nation by Truth & Sperigman which. however, was in the end dismmesed.
In due course the before the learned judge and he decided that Sunetta were noting aa ho aspreeaed it, prineinaia both waye that is to say they were not agenta of So witte, and when they planed advertising with a aewepapar, tha aaaapapor could look to them, and to than only for payneat On that it followed that Fairfax's action against laat Do Witts failed, so that the apropriate order was as regarda that action "dismissed with coste On the other hand againet Do Witte so that the order there would be "Judgnent for against De witta with costs".
That rather long recital of the complicated steeps is this litigation brings no to the point of the appeal which is a vary exert point Mr. Chaplain who appeared for So without elated that the proper order to ho node was that Fairfax's action against witta should he diealBaed with hot that over and above that as order chold be node on as I underataad it, to pay is She learned Judge hold that he had so order The order nougat was analogous to what I understand is known as a Ballook Order which is frequently made between a deffendante or between a defendant and a third party where was or other of the prattle enemies has been substantially responalble for the litigation But those orders are fiaed to ordere for between the parties the prooeedlage The question we have new to decide is whether the learned judge was right is holding as he did, that there was jurisdiction to sake such an order in a like the present one where there are in origin two and these actions are not but are by listed so that they will some on together Mr Chapaan, says that the Court has jurisdiction and he relies an the vary wide worse of Order 65 Rale 1, which provides Subject to the previsions of the lot and these Roles, the coats of as incident to all prcscdings is the supreme Court, including the of and trusts, shall be is the alteration of the Court or Judge Mr. Chapmen say that on the language of that Rule It was perfectly open to the Judge In the present case to deal as he sight in his diceretion, think fit with tha coste of against Da witte which is Mr Chapmman's ought to have beam ordered to be paid to De Witts by Fairfax.
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