FEDERAL COURT OF AUSTRALIA
NSD 1853 of 2016
Date of judgment:
Date of publication of reasons:
22 May 2017
Federal Court Rules 2011 (Cth) r 10.49
Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Opened for signature 15 November 1965. 658 UNTS 163 Arts 8, 10. (entered into force 1 November 2010)
New South Wales
National Practice Area:
Commercial and Corporations
Commercial Contracts, Banking, Finance and Insurance
Number of paragraphs:
Solicitor for the Applicant:
William Roberts Lawyers
Counsel for the Respondent:
The respondent did not appear
DATE OF ORDER:
THE COURT ORDERS THAT:
1. Pursuant to r 10.49(c) of the Federal Court Rules 2011 (Cth), the amended originating application, amended statement of claim and affidavits of Mr Brian Silva sworn on 19 October 2016 and 30 January 2017 be taken to have been served on the respondent by email on 29 April 2017.
2. On or before 15 June 2017, the respondent file and serve any defence.
3. The proceeding be listed for a further case management hearing at 9:30am on 19 June 2017.
4. On or before 5:00pm AEST on 15 May 2017, the applicant send a copy of these orders to the respondent by email at email@example.com.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 On Friday 12 May 2017, I made orders in chambers providing for the substituted service of Vincent Brian Richards of the amended originating application, amended statement of claim and affidavits of Mr Brian Silva sworn 19 October 2016 and 30 January 2017. These orders were made pursuant to r 10.49(c) of the Federal Court Rules 2011 (Cth).
2 The matter concerns a claim by the insurer, the applicant, seeking declarations that it validly refused to pay claims made by Mr Richards pursuant to s 56(1) of the Insurance Contracts Act 1984 (Cth), that the contract was validly cancelled by the applicant in October 2016 or, in the alternative, that the contract has been validly terminated by the applicant. Damages for breach of contract are also sought and, in the alternative to those damages, judgment for the sum of $37,629.92 being moneys had and received (that is an order in restitution) for moneys paid under a mistake of fact.
3 The long and short of the claim as set out in the particulars is that Mr Richards claimed moneys and was paid moneys on the basis that he was totally and permanently incapacitated when he was not so incapacitated. It is said that various claims were made for payment (and moneys were paid thereupon) fraudulently by Mr Richards.
4 Mr Richards is now overseas. When the proceedings commenced, it appeared that he was in Latvia and in communication with the applicant. The applicant sought to serve the proceedings by use of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at The Hague on 15 November 1965 (the Convention).
5 On the basis of the evidence led in the affidavits of Mr Silva, there is a prima facie case that Mr Richards was not incapacitated in the way that he was required to be to receive moneys under the policy, and that there is prima facie evidence supporting the claims made in the statement of claim.
6 Latvia has declared that it is opposed to service of a document under Art 8 of the Convention unless the document is to be served upon a national of the state in which the document originates. The evidence is equivocal as to whether the respondent is a national of Australia. In the evidence, it is equivocal as to whether Mr Richards is a citizen or a permanent resident as at 2002, he having been born in the UK. He has made statements to investigators about links to Australia and coming from Australia and there is also correspondence before the Court indicating that he was seeking to become a permanent resident of Latvia.
7 In the light of this evidence, I was not satisfied at the second case management hearing in February as to service in accordance with Art 8 of the Convention. Latvia does not object to Art 10(a) of the Convention, being the freedom to send a judicial document by postal channels directly to an addressee within the Republic of Latvia if the document to be served is in Latvian, or it is accompanied by a translation into Latvian, and it is sent to the addressee using a registered postal letter with an acknowledgment of receipt.
8 The applicant then sought leave to effect service on the respondent in accordance with Art 10(a) of the Convention. I gave that leave: see AIA Australia Ltd v Richards  FCA 84.
9 In early May 2017, the applicant indicated to the Court that it was unable to serve the respondent by international registered post in Latvia. The respondent himself requested that the documents be sent to him by email which the applicant did: see the affidavit of Mr Silva, sworn 28 April 2017.
10 On 26 April 2017, the email system provided a delivery receipt in respect of the emails which served the amended application and amended statement of claim together with the affidavits of Mr Silva, but it did not provide a read receipt. The applicant has, however, notified the Court that on 29 April 2017 the respondent responded to each email and confirmed that he had received them. Those documents have been placed before the Court.
11 I am satisfied that the respondent has received the emails containing the amended originating application, amended statement of claim and affidavits of Mr Silva of 19 October 2016 and 30 January 2017, being the documents setting out the prima facie evidence of the case and the claim itself. I am satisfied that he received them by a manner which he requested and that he is able to understand the commencement of the suit in Australia against him.
12 In these circumstances, I was prepared to make the orders on Friday, 12 May 2017.