FEDERAL COURT OF AUSTRALIA

International Maritime Services Pty Ltd v Lumary S.A. trading as Colonia Express [2016] FCA 160

ORDERS

THE COURT ORDERS THAT:

1.    The applicant be granted leave to serve the Originating Application dated 5 January 2016, the Statement of Claim dated 5 January 2016 and the applicant’s Genuine Steps Statement dated 5 January 2016 on the respondent in Uruguay in accordance with the law of Uruguay.

2.    Costs of today be reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

REVISED FROM TRANSCRIPT

MCKERRACHER J:

1    International Maritime Services Pty Ltd (ACN 096 311 189) (IMS) applies today for orders for service out. It seeks leave to serve the originating application dated 5 January 2016, a statement of claim dated 5 January 2016 and its genuine steps statement of the same date on the respondent, Lumary S.A. trading as Colonia Express, in Uruguay in accordance with the law of Uruguay.

2    The interlocutory application pertains to a dispute in which IMS seeks judgment against Lumary for approximately US$725,000, being moneys claimed to be due and payable pursuant to a contract governed by the law of Western Australia between the parties for the delivery of Lumary’s vessel, Golden Blaze (the vessel), from Greece to Uruguay. IMS claims that, in fulfilment of the delivery contract, the IMS crew mobilised to Piraeus, Greece on or about 30 October 2014 to prepare the vessel for delivery. The vessel arrived at Montevideo in Uruguay on 14 January 2015, and IMS crew demobilised on 17 January 2015. IMS claims that Lumary has failed to pay IMS the last instalment of the contract sum, additional fees for the delayed delivery of the vessel and further costs and expenses incurred by IMS for the vessel’s entry and stay at certain points during the delivery, in breach of the delivery contract. IMS also claims against Lumary for breach of its express and implied obligations as to the seaworthiness of the vessel, and, further or in the alternative, for misrepresentation and/or misleading and deceptive conduct in contravention of s 18 of the Australian Consumer Law.

3    The interlocutory application is supported by an affidavit sworn by a solicitor for IMS, who explains that Lumary is a corporation registered in Uruguay with its registered domicile in Montevideo. There is a deal of communication in evidence on the affidavit indicating that there have been communications with a law firm in Australia in respect of this matter since the solicitor that swore the affidavit was informed on 5 August 2015 that the firm was acting on behalf of Lumary in respect of the matter.

4    In particular, queries have been raised as to whether Lumary’s solicitor had instructions to accept service, but nothing has been confirmed to indicate that such instructions had been received. The solicitor who appears before the Court today deposes to her belief that it is not likely that Lumary will soon give instructions to the solicitors to accept service.

5    The correspondence reveals a potential dispute between the parties in relation to certain matters, but that potential dispute does not detract from one of the fundamental questions which has to be resolved in a matter of this nature, namely, whether there is a prima facie case.

6    Information from IMS’ lawyer in Uruguay is to the effect that the law of Uruguay will permit, and recognise as effective, personal service of process documents on Lumary according to the law of Australia. There is also information from Uruguay that it will be necessary to arrange for a notary in Uruguay to serve and certify the service of the process documents on Lumary. The proposal from IMS is that a notary attend Lumary’s registered office address in Montevideo to personally serve the process documents on Lumary, such that the notary can then certify, by way of an affidavit of service, the method of service.

7    Absent statutory power, a Court will only have jurisdiction over persons physically present within the jurisdiction, or corporations physically present, at the time that the initiating process is issued, or others who, by their actions, have submitted to the general jurisdiction of the Court: Laurie v Carroll (1958) 98 CLR 310, where Dixon CJ, Williams and Webb JJ said (at 322-323):

… [Turning to the question of] whether it was competent and proper to make the order for substituted service of the writ of summons. Primarily the question is one of jurisdiction. The action is in personam and it is transitory; and in such an action the jurisdiction of the Supreme Court of Victoria depends not in the least on subject matter but upon the amenability of the defendant to the writ expressing the Sovereign's command in right of the State of Victoria. The common law doctrine is that the writ does not run beyond the limits of the State. By the federal Service and Execution of Process Act 1901-1953, however, it may, if endorsed under that statute, be served elsewhere within the Commonwealth and its Territories, the conditions in which this may be done and the consequences being defined by the provisions of the Act. … For except for these extensions of the principle of the common law, it remains true that a writ issued out of the Supreme Court of Victoria does not run outside that State. And in actions in personam this must determine the jurisdiction of the court over the defendant. “The root principle of the English law about jurisdiction is that the judges stand in the place of the Sovereign in whose name they administer justice, and that therefore whoever is served with the King's writ and can be compelled consequently to submit to the decree made, is a person over whom the Courts have jurisdiction”, per Viscount Haldane: John Russell & Co. Ltd. v. Cayzer, Irvine & Co. Ltd. Holmes J. regarded the principle as based upon the capacity to exert actual power. “The foundation of the jurisdiction is physical power, although in civilized times it is not necessary to maintain that power throughout proceedings properly begun, and although submission to the jurisdiction by appearance may take the place of service upon the person. … No doubt there may be some extension of the means of acquiring jurisdiction beyond service or appearance but the foundation should be borne in mind”: McDonald v. Mabee.

Statutory provision is in the present context through Div 10.4 of the Federal Court Rules, in turn authorised by statute. Pursuant to that Division, the leave of the Court is required for effective service of the process documents on the respondent in Uruguay by r 10.43(1)(a).

8    The application proceeds, then, by way of Div 10.04 of the Federal Court Rules 2011 (Cth). This is necessary because, absent some statutory provision or rules made pursuant to statute, rr 10.41, 10.42, 10.43 and 10.44 provide:

Division 10.4—Service outside Australia

10.41  Definitions for Division 10.4

In this Division:

convention, for a foreign country, means a convention (other than the Hague Convention), agreement, arrangement or treaty about service abroad of judicial documents to which the Crown in right of the Commonwealth or, if appropriate, in right of a State, and a foreign country are parties.

foreign country means a country other than Australia.

Hague Convention means the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965.

10.42    When originating application may be served outside Australia

Subject to rule 10.43, an originating application, or an application under Part 7 of these Rules, may be served on a person in a foreign country in a proceeding that consists of, or includes, any one or more of the kinds of proceeding mentioned in the following table.

Item	Kind of proceeding in which originating application may be served on a person outside Australia
1	Proceeding based on a cause of action arising in Australia
2	Proceeding based on a breach of a contract in Australia
3	Proceeding in relation to a contract that: (a) is made in Australia; or (b) is made on behalf of the person to be served by or through an agent who carries on business, or is resident, in Australia; or (c) is governed by the law of the Commonwealth or of a State or Territory; in which the applicant seeks: (d) an order for the enforcement, rescission, dissolution, rectification or annulment of the contract; or (e) an order otherwise affecting the contract; or (f) an order for damages or other relief in relation to a breach of the contract

…

10.43    Application for leave to serve originating application outside Australia

…

(2)    A party may apply to the Court for leave to serve an originating application on a person in a foreign country in accordance with a convention, the Hague Convention or the law of the foreign country.

…

(4)    For subrule (2), the party must satisfy the Court that:

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

(b)    the proceeding is of a kind mentioned in rule 10.42; and

(c)    the party has a prima facie case for all or any of the relief claimed in the proceeding.

…

10.44    Service of other documents

(1)    A party may apply to the Court for leave to serve a document filed in or issued by the Court, other than an originating application, on a person in a foreign country in accordance with a convention, the Hague Convention or the law of the foreign country.

Note 1:    The law of a foreign country may permit service through the diplomatic channel or service by a private agent—see Division 10.5.

Note 2:    Rules 10.63 to 10.68 deal with service of local judicial documents in a country, other than Australia, that is a party to the Hague Convention.

Note 3:    The Court may give permission under subrule (4) on conditions—see rule 1.33.

(2)    An application under subrule (1) must be accompanied by an affidavit that includes the information mentioned in paragraphs 10.43(3)(a) to (c).

(3)    If a document, other than an originating application, was served on a person in a foreign country without the leave of the Court, a party may apply to the Court for an order confirming the service.

(4)    For subrule (3), the party must satisfy the Court that:

(a)    the service was permitted by:

(i)    if a convention applies—the convention; or

(ii)    if the Hague Convention applies—the Hague Convention; or

(iii)    in any other case—the law of the foreign country; and

(b)    there is a sufficient explanation for the failure to apply for leave.

9    IMS proceeds pursuant to r 10.43(2) and r 10.44(1) with the supporting material to which I have referred. The essence of the application is for a claim for breach of contract, which is said to be governed by the law of Western Australia, with a claim in damages in relation to the breach of contract. It follows that the proceeding is of a kind referred to in r 10.42, item 3(c) and item 3(f), and, subject to r 10.43, it follows that the originating application may, with leave, be served on a person in a foreign country in accordance with r 10.42.

10    IMS has established that Lumary is a corporation registered in Uruguay and domiciled in Montevideo. I am satisfied also that the Court has jurisdiction, for the following reasons. Pursuant to s 9 of the Admiralty Act 1988 (Cth), the Court has jurisdiction to determine in personam actions concerning a maritime claim. Maritime claims, pursuant to s 4 of the Admiralty Act, include claims arising out of an agreement that relates to the carriage of goods or persons by a ship or to the use or hire of a ship, whether by charter party or otherwise, in accordance with s 4(3)(f) of the Admiralty Act.

11    This particular contract, which has been produced in evidence, is a contract for the delivery by IMS of Lumary’s vessel from Piraeus, Greece to Montevideo, Uruguay, and the contract relates to the use of a vessel for that purpose. The words ‘arising out of’ and ‘relates to’ in s 4(3)(f) of the Admiralty Act are of wide import: Beluga Shipping GmbH & Co v Headway Shipping Limited (No. 2) (2008) 251 ALR 620 (at [12]). It follows that a maritime claim as prescribed by s 4(3)(f) of the Admiralty Act is broad enough to encompass IMS’ claim pursuant to the contract which has been adduced in evidence.

12    IMS has a prima facie case for all or any of the relief claimed in the proceedings on the bases advanced by IMS in this application. Namely, first, Lumary has allegedly breached various of its obligations pursuant to the contract by failing to pay IMS various sums and expenses due under the contract, including delivery day rate fees. Secondly, the delivery period was allegedly delayed by a total of 57 days, which delays were beyond the control of IMS and fell within the unavoidable delays provisions under the contract. Thirdly, in that event, IMS would be entitled under the contract to payment by Lumary of delivery day rate fees. Finally, IMS claims not to have been paid those fees in respect of the 57 days caused by the unavoidable delays, such that Lumary is allegedly in breach of its obligation. I stress that I list these matters, of course, by reference only to the content of the statement of claim and the material before the Court, without, of course, prejudging the correctness of the claims or the merits of any response that may be raised by Lumary.

13    IMS has also satisfied the Court that it is not likely that at any time in the near future service will be accepted in any other way. It follows that service on Lumary in Uruguay would be necessary in order to enable the dispute to be resolved.

14    For those reasons, in my view, it is appropriate to make the orders sought in the interlocutory application.

15    The following orders are made:

1.    The applicant be granted leave to serve the Originating Application dated 5 January 2016, the Statement of Claim dated 5 January 2016 and the applicant's Genuine Steps Statement dated 5 January 2016 on the respondent in Uruguay in accordance with the law of Uruguay.

2.    Costs of today be reserved.

Associate:

Dated:    26 February 2016