FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - service of process outside Australia - non‑convention country - whether service through diplomatic channels practical - whether substituted service can be ordered where compliance with Rules impractical - whether substituted service should be personal or by post.

Federal Court Rules O 7 r 9, O 8 rr 5, 14, 15

THE SWAN BREWERY CO LTD (ACN 009 065 267) v ROBERT FRANCIS ATLEE

WG 7032 of 1997

R D NICHOLSON J

PERTH

27 FEBRUARY 1998

GENERAL DISTRIBUTION

THE COURT ORDERS THAT:

1.             The application for a sequestration order of 22 April 1997, accompanied by copies of the affidavits of Mary Baird sworn 18 March 1997 and Keith Upton of 7 July 1997 and of this order be personally served on Robert Francis Atlee by persons engaged on behalf of the applicant at Bayview Park Hotel, 1118 Roxas Boulevard, Ermita, Manila, Philippines.

2.             There be liberty to apply generally.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

GENERAL DISTRIBUTION

EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUR:  The applicant  brings a notice of motion seeking an order that notice of an application for a sequestration order of 22 April 1997 and certain affidavits be posted to the respondent at a hotel address in Manila, the Philippines, and the application be deemed to have been duly served upon the respondent 21 days after the filing of an affidavit deposing to compliance with the proposed order.

There is evidence the respondent is indeed resident at the hotel in Manila.  Consequently the motion raises the question of how the respondent can be properly served in accordance with the provisions of the Federal Court Rules (“the FCR”).  Order 8 addresses service outside the jurisdiction.  Rule 5 in Div 1 provides a document which is to be served outside Australia need not be served personally on the person required to be served so long as it is served on him in accordance with the law of the country in which service is effected.

Division 3 addresses the case of service in non-convention countries.  There is evidence before the Court the Philippines is a non-convention country.  Rule 14 envisages transmissions of the documents in a translated form together with a request to the government of the country in respect of which leave is given.  Rule 15 provides an official certificate or declaration transmitted to the Court through the diplomatic channel by the government or Court of a country to which the Division applies is sufficient proof of  service of a document if it certifies or declares the document has been personally served or served in accordance with the law of the country.  I read the second alternative (contained in r 15(b)) as giving effect to r 5, that is, if the document is served in accordance with the law of the country there is no need for personal service.

Practice note 13 of the Court addresses the utilisation of O 8.  It provides a party seeking leave to serve originating process abroad under that order should support the application with evidence of advice obtained from the International Civil Procedures Section of the Commonwealth Attorney‑General’s Department as to the most appropriate form of service in the country concerned and as to the legality under the law of the country concerned of service in the manner proposed.  At the last directions hearing, following consideration of that practice note, the hearing was adjourned to enable the particulars of the note to be complied with.

By letter dated 22 December 1997 from the Civil Law Division of the Attorney‑General’s Department (“the Department”) the person applying on behalf of the applicant has been advised service through diplomatic channels in the Philippines could take six months or considerably more.  Furthermore the advice from the Department states subsequent inquiries had revealed “the authorities in the Philippines will not assist with service via the diplomatic channel”.  The officer of the Department therefore suggested the applicant investigate the possibility of having the documents served privately.  The Department noted the applicant has advice private service could be effected within 48 hours.

From this I find as a fact it is impractical to serve the documents referred to in the motion in the manner set out in O 8 Div 3.

Order 7 r 9 provides:

“9. (1)  Where for any reason it is impractical to serve a document in the manner set out in the Rules, the Court may by motion in an existing proceeding made ex parte order that, instead of service, such steps be taken as are specified in the order for the purpose of bringing the document to the notice of the person to be served.”

I do not consider O 7 r 9 is confined to impracticality of service within the country.  In its terms sub-r 9(1) applies to “the Rules, ” which is a reference to all the FCR, including O 8.  I consider the motion presently before me is the motion required by this rule.  Furthermore, I read the words “instead of service” as referring to service “in the manner set out in the Rules” so that the rule applies not only where service cannot be effected but where it is impractical for service to be in the manner set out in the Rules.

While it is clear that compliance with O 8 rr 14 and 15 as to the utilisation of the diplomatic channel is impractical, it is not established on the evidence that personal service is impractical.  The applicant does not oppose personal service by a private means.  In my view it is preferable personal service be ordered where it is available and not opposed.  Personal service is not impractical and constitutes the best mode of service, being preferable to service by post.

I say this particularly because the matter which brings this application to the Court is a matter under the Bankruptcy Act 1966 (Cth) (“the Act”).  What is sought to serve is notice of an application for a sequestration order.  Such an application is of such fundamental importance to the application of the Act to the respondent that he should be entitled to the best mode of service as will ensure he is made aware of the proposed proceedings.

I note also personal service is the mode of service which is preferred under the FCR so far as they apply to service inside the country.

For these reasons I consider the applicant is entitled to an order for substituted service of the documents referred to in the notice of motion, substituted in the sense that rather than comply with the provisions of O 8, personal service is effected by private means.

It would follow from there being evidence the application has been served in that manner that it is not necessary for any deeming order to be made of due service as proposed in the motion.  Evidence in the normal course of such service would be filed.

For these reasons I consider if moved on behalf of the applicant to do so, the Court should make orders giving effect to these reasons rather than in terms of the motion.

Associate:

Dated:              27 March 1998