FEDERAL COURT OF AUSTRALIA

Freehills, in the matter of New Tel Limited (in liq) ACN 009 068 955 [2008]
FCA 762

SUPPLEMENTARY REASONS FOR JUDGMENT

IN THE MATTER OF NEW TEL LIMITED (IN LIQUIDATION) ACN 009 068 955

THE APPLICATION OF FREEHILLS

WAD 188 of 2007

MCKERRACHER J

26 MAY 2008 (SUPPLEMENTARY REASONS FOR JUDGMENT 19 JUNE 2008)

PERTH

IN THE MATTER OF NEW TEL LIMITED (IN LIQUIDATION) ACN 009 068 955

THE COURT ORDERS (IN ADDITION TO THE ORDERS MADE ON 26 MAY 2008) THAT:

1.                  The plaintiff have leave to serve the summons of examination issued to the examinee dated 1 November 2007 (Summons) outside Australia.

2          Service of the Summons pursuant to O 8 r 3(2) of the Federal Court Rules be dispensed with.

3          A copy of the Summons together with a sealed copy of this order (the Documents) be served on or before 4 July 2008 as follows:

(a)        by personal service of the Documents on Mr Craig Willis a director of Acclaim Exploration NL together with a written request to Mr Willis to forward the Documents to the examinee forthwith.

(b)        by personal service of the Documents on Mr Brian Thomas a director of Chrome Corporation Limited together with a written request to Mr Thomas to forward the Documents to the examinee forthwith.

(c)        by serving the Documents on Tottle Partners, Solicitors, of Level 40, 108 St Georges Terrace, Perth, Western Australia 6000 together with a written request to Tottle Partners to forward the Documents to the examinee forthwith.

(c)        by emailing a copy of the Documents to Ms Karen Johnson at Pantheon Resources Plc together with a written request to Ms Johnson to forward the Documents to the examinee forthwith.

(d)        by personal service of the Documents on the examinee’s father, Mr Barry Granville Waller together with a written request to Mr Waller to forward the Documents to the examinee forthwith.

(e)        by placing the Documents in an envelope addressed to the examinee at 4 Avenue Des Guelfes MC 9800 Monaco and dispatching by ordinary airmail post to the said address.

4.         Service being achieved in accordance with any one of the methods set out in order 3 shall be deemed good and sufficient service of the Summons on the examinee.

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

IN THE MATTER OF NEW TEL LIMITED (IN LIQUIDATION) ACN 009 068 955

SUPPLEMENTARY REASONS FOR JUDGMENT

BACKGROUND

1                     On 26 May 2008 (Freehills, in the Matter of New Tel Ltd (In Liq) [2008] FCA 762), I adjourned the plaintiff’s ex parte application by which it sought leave to serve an examination summons on the examinee outside Australia. It also sought substituted service.  The purpose of the adjournment was to enable the plaintiff to adduce evidence as to the law of Monaco in relation to service of documents. 

2                     The plaintiff has now produced copies of electronic exchanges with an international law firm practising in Monaco (amongst other places).  The information from that law firm is admissible for reasons outlined in Freehills [2008] FCA 762 at [33].  It makes it clear that service can be effected personally in Monaco.  Service can be effected by private agents but there are only two ‘huissiers’ in Monaco.  For a variety of reasons which have been explained but do not presently require detailing, the advice is that attempts to effect personal service by such agents on the examinee in the circumstances canvassed in Freehills [2008] FCA 762 at [18]-[19] would be particularly difficult. 

3                     The information from this legal firm also confirms that service through diplomatic channels is acceptable pursuant to Monaco law but for a variety of reasons it would be wise to allow for six months for service to be effected through diplomatic channels. 

4                     There is further evidence (again, on an admissible hearsay basis) from the Private International Law Section of the Attorney-General’s Department.  The advice from the Department makes it clear in a practical sense that a period of six months or more should be provided for before service might be achieved through diplomatic channels. 

5                     As anticipated in my reasons of 26 May 2008 at [32], the Department was not purporting to give legal advice as to the law in Monaco in relation to service.  Nevertheless, I am satisfied that in the absence of a convention, the requirement to produce evidence as to the law of the foreign country in relation to the proposed method of service (O 8 r 3(3) of the Federal Court Rules (FCR)) has been satisfied by annexing the electronic exchanges with the local law firm. 

6                     Accordingly I would make an order pursuant to O 8 r 3(2) FCR that there be leave to serve the examination summons out of Australia.

7                     As to the second application which is for substituted service, I concluded in Freehills [2008] FCA 762 at [23], that subject to being satisfied that service out of the jurisdiction would be impracticable, that there was merit in making an order for substituted service. 

8                     The evidence shows that for the purpose of proceedings of this nature in which there is some commercial imperative, that service through diplomatic channels in Monaco would be impractical as it is unpredictable and delays of six months or more may be experienced.  Further, there is no formal or enforceable obligation on the authorities in Monaco to serve the summons on the examinee.  

9                     The examination has been listed for hearing on 17 July 2008.  (As to the hearing date, regardless of what arrangements are made, the examinee would have to be given appropriate reasonable notice to attend for the examination.  But a delay of six months in attempting service is unacceptable in the present circumstances.).  It is therefore impractical for the plaintiff to effect service on the examinee either through diplomatic channels or by private agent. 

10                  Moreover, I consider that the best mode of service in the circumstances (that is, the one most likely to bring the summons to the examinee’s attention) is not personal service through a ‘huissier’ but rather an alternative form of service.  In this regard, at least for the purposes of the ex parte application, I am satisfied that there is for the reasons eMCKERRACHER J

26 MAY 2008 (SUPPLEMENTARY REASONS FOR JUDGMENT 19 JUNE 2008)

PERTH

IN THE MATTER OF NEW TEL LIMITED (IN LIQUIDATION) ACN 009 068 955

THE COURT ORDERS (IN ADDITION TO THE ORDERS MADE ON 26 MAY 2008) THAT:

1.                  The plaintiff have leave to serve the summons of examination issued to the examinee dated 1 November 2007 (Summons) outside Australia.

2          Service of the Summons pursuant to O 8 r 3(2) of the Federal Court Rules be dispensed with.

3          A copy of the Summons together with a sealed copy of this order (the Documents) be served on or before 4 July 2008 as follows:

(a)        by personal service of the Documents on Mr Craig Willis a director of Acclaim Exploration NL together with a written request to Mr Willis to forward the Documents to the examinee forthwith.

(b)        by personal service of the Documents on Mr Brian Thomas a director of Chrome Corporation Limited together with a written request to Mr Thomas to forward the Documents to the examinee forthwith.

(c)        by serving the Documents on Tottle Partners, Solicitors, of Level 40, 108 St Georges Terrace, Perth, Western Australia 6000 together with a written request to Tottle Partners to forward the Documents to the examinee forthwith.

(c)        by emailing a copy of the Documents to Ms Karen Johnson at Pantheon Resources Plc together with a written request to Ms Johnson to forward the Documents to the examinee forthwith.

(d)        by personal service of the Documents on the examinee’s father, Mr Barry Granville Waller together with a written request to Mr Waller to forward the Documents to the examinee forthwith.

(e)        by placing the Documents in an envelope addressed to the examinee at 4 Avenue Des Guelfes MC 9800 Monaco and dispatching by ordinary airmail post to the said address.

4.         Service being achieved in accordance with any one of the methods set out in order 3 shall be deemed good and sufficient service of the Summons on the examinee.

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

IN THE MATTER OF NEW TEL LIMITED (IN LIQUIDATION) ACN 009 068 955

SUPPLEMENTARY REASONS FOR JUDGMENT

BACKGROUND

1                     On 26 May 2008 (Freehills, in the Matter of New Tel Ltd (In Liq) [2008] FCA 762), I adjourned the plaintiff’s ex parte application by which it sought leave to serve an examination summons on the examinee outside Australia. It also sought substituted service.  The purpose of the adjournment was to enable the plaintiff to adduce evidence as to the law of Monaco in relation to service of documents. 

2                     The plaintiff has now produced copies of electronic exchanges with an international law firm practising in Monaco (amongst other places).  The information from that law firm is admissible for reasons outlined in Freehills [2008] FCA 762 at [33].  It makes it clear that service can be effected personally in Monaco.  Service can be effected by private agents but there are only two ‘huissiers’ in Monaco.  For a variety of reasons which have been explained but do not presently require detailing, the advice is that attempts to effect personal service by such agents on the examinee in the circumstances canvassed in Freehills [2008] FCA 762 at [18]-[19] would be particularly difficult. 

3                     The information from this legal firm also confirms that service through diplomatic channels is acceptable pursuant to Monaco law but for a variety of reasons it would be wise to allow for six months for service to be effected through diplomatic channels. 

4                     There is further evidence (again, on an admissible hearsay basis) from the Private International Law Section of the Attorney-General’s Department.  The advice from the Department makes it clear in a practical sense that a period of six months or more should be provided for before service might be achieved through diplomatic channels. 

5                     As anticipated in my reasons of 26 May 2008 at [32], the Department was not purporting to give legal advice as to the law in Monaco in relation to service.  Nevertheless, I am satisfied that in the absence of a convention, the requirement to produce evidence as to the law of the foreign country in relation to the proposed method of service (O 8 r 3(3) of the Federal Court Rules (FCR)) has been satisfied by annexing the electronic exchanges with the local law firm. 

6                     Accordingly I would make an order pursuant to O 8 r 3(2) FCR that there be leave to serve the examination summons out of Australia.

7                     As to the second application which is for substituted service, I concluded in Freehills [2008] FCA 762 at [23], that subject to being satisfied that service out of the jurisdiction would be impracticable, that there was merit in making an order for substituted service. 

8                     The evidence shows that for the purpose of proceedings of this nature in which there is some commercial imperative, that service through diplomatic channels in Monaco would be impractical as it is unpredictable and delays of six months or more may be experienced.  Further, there is no formal or enforceable obligation on the authorities in Monaco to serve the summons on the examinee.  

9                     The examination has been listed for hearing on 17 July 2008.  (As to the hearing date, regardless of what arrangements are made, the examinee would have to be given appropriate reasonable notice to attend for the examination.  But a delay of six months in attempting service is unacceptable in the present circumstances.).  It is therefore impractical for the plaintiff to effect service on the examinee either through diplomatic channels or by private agent. 

10                  Moreover, I consider that the best mode of service in the circumstances (that is, the one most likely to bring the summons to the examinee’s attention) is not personal service through a ‘huissier’ but rather an alternative form of service.  In this regard, at least for the purposes of the ex parte application, I am satisfied that there is for the reasons expressed in Freehills [2008] FCA 762 a proper basis for concluding that the examinee is avoiding service of the summons, that he is ‘flying around the world all the time’, that he would make it difficult for the plaintiff to serve him and that in contrast, he has contact which is sufficiently dependable with each of the persons or entities in respect of whom substituted service is sought to be effected. 

11                  The methods of substituted service proposed by the plaintiff are likely to bring the Summons to the attention of the examinee for the following reasons:

1.                  the examinee himself referred the plaintiff to his solicitors in Australia in terms from which it may be inferred that they are in contact with the examinee;

2.                  the interest of the examinee’s father, on whom it is proposed to serve the documents, in the welfare of the examinee was demonstrated by the steps he took to apply to intervene in the ex parte application and prevent service of the documents on the examinee;

3.                  the examinee is in contact with the companies on which it is proposed to serve the documents together with a written request to forward the documents to the examinee: Freehills [2008] FCA 762 at [19]; and

4.                  although the examinee is ‘flying around the world all the time’, it appears likely that he will periodically return to his residence in Monaco or have made arrangements to receive post, or be informed of post, received at his Monaco residence.

12                  I will accordingly make the following orders:

1.                  The plaintiff have leave to serve the summons of examination issued to the examinee dated 1 November 2007 (Summons) outside Australia.

2          Service of the Summons pursuant to O 8 r 3(2) of the Federal Court Rules be dispensed with.

3          A copy of the Summons together with a sealed copy of this order (the Documents) be served on or before 4 July 2008 as follows:

(a)        by personal service of the Documents on Mr Craig Willis a director of Acclaim Exploration NL together with a written request to Mr Willis to forward the Documents to the examinee forthwith.

(b)        by personal service of the Documents on Mr Brian Thomas a director of Chrome Corporation Limited together with a written request to Mr Thomas to forward the Documents to the examinee forthwith.

(c)        by serving the Documents on Tottle Partners, Solicitors, of Level 40, 108 St Georges Terrace, Perth, Western Australia 6000 together with a written request to Tottle Partners to forward the Documents to the examinee forthwith.

(c)        by emailing a copy of the Documents to Ms Karen Johnson at Pantheon Resources Plc together with a written request to Ms Johnson to forward the Documents to the examinee forthwith.

(d)        by personal service of the Documents on the examinee’s father, Mr Barry Granville Waller together with a written request to Mr Waller to forward the Documents to the examinee forthwith.

(e)        by placing the Documents in an envelope addressed to the examinee at 4 Avenue Des Guelfes MC 9800 Monaco and dispatching by ordinary airmail post to the said address.

4.         Service being achieved in accordance with any one of the methods set out in order 3 shall be deemed good and sufficient service of the Summons on the examinee.

Associate:

Dated:         19 June 2008