FEDERAL COURT OF AUSTRALIA

Parmalat Australia Ltd v Rush Drinks Ltd [2010] FCA 675

REASONS FOR JUDGMENT

1                                             This is an application for leave to serve a notice of appeal out of the jurisdiction, pursuant to O 8 r 3.  Order 8, r 3(2) provides:

The Court may give leave to a party to serve an originating process on a person in a foreign country in accordance with a convention or the law of the foreign country, on such terms and conditions as it considers appropriate, if the Court is satisfied that:

(a)        the Court has jurisdiction in the proceeding; and

(b)        the proceeding is of a kind mentioned in rule 2; and

(c)        the person seeking leave has a prima facie case for the relief claimed by the person in the proceeding.

2                                             I have already recorded my satisfaction as to matters referred to in subparas (a), (b), and (c).  I have also indicated that I am willing to extend time in which to serve the notice of appeal, proceeding ex parte, upon the basis that the matter is analogous to an application to extend time to serve a writ of summons, which applications are traditionally made and determined on an ex parte basis.  The question remains, however, as to the content for present purposes of the expression “in accordance with a convention or the law of a foreign country” insofar as it concerns service of an originating process.  There is conflicting evidence before me as to the relevant state of the law in the United Kingdom. 

3                                             An English solicitor asserts that the relevant Civil Procedure Rules require that service in England of any document in connection with civil or commercial proceedings originating in a foreign court or tribunal be the subject of a written request from the Secretary of State for Foreign and Commonwealth Affairs to the Senior Master of the High Court.  However, on the Commonwealth Attorney-General’s website, it is said that:

The United Kingdom Government will not accept requests through the diplomatic channel from another Commonwealth country (including Australia) seeking the assistance of its authorities in serving documents. 

4                                             This seems to suggest that the Foreign and Commonwealth Office will not participate in the process contemplated by the Civil Procedure Rules.  There is also evidence from the solicitor that she has been informed by a Master of the English High Court that service may be effected using an English solicitor in connection with which service Master Whitaker will then provide an appropriate certificate of service.  The present applicant wishes to avail itself of that process and, in view of the apparent unavailability of the process identified in the Civil Procedure Rules, it seems appropriate to let it do so.

Associate:

Dated:         9 July 2010