FEDERAL COURT OF AUSTRALIA

Ziziphus Pty Ltd v D’Sylva [2018] FCA 514

ORDERS

THE COURT ORDERS THAT:

1.    The applicant be granted leave, pursuant to rr 10.43 and 10.44 of the Federal Court Rules 2011, to serve on Rahul Goel in India and Yu Lau in Hong Kong in accordance with the requirements 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 following documents:

(a)    the further amended originating application;

(b)    the further amended statement of claim; and

(c)    a copy of the Order dated 28 March 2018 and a copy of this Order.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

1    By a further amended interlocutory application dated 28 March 2018, the applicant (Ziziphus) applied for an order, pursuant to r 10.43(2) of the Federal Court Rules 2011, that it have leave to file and serve its further amended originating application and further amended statement of claim on the following two respondents outside of Australia pursuant to 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 Hague Convention):

(a)    Rahul Goel in India; and

(b)    Yu Lau in Hong Kong.

2    At a case management hearing on 28 March 2018, it was arranged that the application would be dealt with ‘on the papers’. Later that day, Ziziphus provided an outline of submissions in support of the application.

3    Subsequently, on 29 March 2018, I made an order that:

1.    The applicant be granted leave, pursuant to rr 10.43 and 10.44 of the Federal Court Rules 2011, to serve on Rahul Goel in India and Yu Lau in Hong Kong in accordance with the requirements 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 following documents:

(a)    the further amended originating application;

(b)    the further amended statement of claim; and

(c)    a copy of the Order dated 28 March 2018 and a copy of this Order.

4    I now set out my reasons for making the above order.

Applicable principles

5    Rule 10.43 of the Federal Court Rules 2011 relevantly provides:

(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.

(3)    The application under subrule (2) must be accompanied by an affidavit stating:

(a)    the name of the foreign country where the person to be served is or is likely to be; and

(b)    the proposed method of service; and

(c)    that the proposed method of service is 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.

(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.

6    Rule 10.42 relevantly provides:

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.

…

1    Proceeding based on a cause of action arising in Australia.

…

15    Proceeding seeking any relief or remedy under an Act, including the Judiciary Act 1903.

7    Rule 10.44 relevantly provides:

(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.

…

(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).

8    I referred to the relevant principles recently in Australian Competition and Consumer Commission v Apple Pty Ltd [2017] FCA 416 and Deputy Commission of Taxation v Galaxy S.à r.l. SICAR [2017] FCA 631. For ease of reference, I set out again, below, that summary of the principles.

9    Rule 10.43(4)(c) refers to the party having a prima facie case for all or any of the relief claimed in the proceeding. This requirement has been described as “not particularly onerous”: Australian Competition and Consumer Commission v Yellow Page Marketing BV [2010] FCA 1218 (Yellow Page Marketing) at [25] per Gordon J. In Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 6) (2010) 270 ALR 504, Bennett J said in relation to the predecessor provision (at [8]):

Establishing a prima facie case for the relief claimed for the purposes of O 8 r 3(2) of the FCR should not call for a substantial inquiry. A prima facie case is made out where, upon a broad examination rather than an intense scrutiny of the material before the court, inferences are shown to be open which, if translated into findings of fact, would support the relief claimed: Western Australia v Vetter Trittler Pty Ltd (in liq) (rec and mgr apptd) (1991) 30 FCR 102 at 110; 4 ACSR 795 at 802–3 per French J; Sydbank Soenderjylland (A/S) v Bannerton Holdings Pty Ltd (1996) 68 FCR 539 at 549; 149 ALR 134 at 142–3; the Full Court in F Hoffman-La Roche at [17] and [96]–[97] per Carr J. The relevant question was put in the following terms by Lee J in Century Insurance (in prov liq) v New Zealand Guardian Trust Ltd [1996] FCA 376, a formulation approved by the Full Court (in Ho v Akai Pty Ltd (in liq) [2006] FCAFC 159 at [10] (Ho)):

What the court must determine is whether the case made out on the material presented shows that a controversy exists between the parties that warrants the use of the court’s processes to resolve it and whether causing a proposed respondent to be involved in the litigation in the court in Australia is justified.

10    The applicant need only show a prima facie case in respect of part of, rather than the entirety of, its claim: Yellow Page Marketing at [25].

11    The Court has residual discretion to refuse leave to serve out even if the requirements of the above rules have been met: Jasmin Solar Pty Ltd v Trina Solar Australia Pty Ltd (2015) 331 ALR 108 at [66] per Edelman J and the cases there cited.

Application of principles to the present case

12    Rule 10.43(3) requires the application for leave to serve out to be accompanied by an affidavit setting out certain matters. In the present case, the application is supported by an affidavit of Elyn Lucas, a solicitor employed by the solicitors acting for Ziziphus, dated 28 March 2018. This affidavit sets out the required matters. It is proposed to serve the following documents on Rahul Goel in India and Yu Lau in Hong Kong:

(a)    the further amended originating application; and

(b)    the further amended statement of claim.

13    The proposed method of service on Rahul Goel is to complete a form USM-94 and to provide the documents to the Indian Central Authority to effect service. Ms Lucas deposes that India is a member of the Hague Convention and that this method of service is pursuant to the Hague Convention. I take this to be a statement that the proposed method of service is permitted by the Hague Convention.

14    In relation to Yu Lau, the proposed method of service is either: (a) pursuant to article 5 of the Hague Convention, to complete a form USM-94 and to provide the documents to the Chinese Central Authority to effect service; or (b) by the engagement of a private agent pursuant to article 10(b) of the Hague Convention. Ms Lucas deposes that the People’s Republic of China is a member of the Hague Convention and that each of the proposed methods of service is pursuant to the Hague Convention. Again, I take this to be a statement that the proposed method is permitted by the Hague Convention.

15    Turning to the requirements of r 10.43(4), I am satisfied that each of these requirements is established. First, the Court has jurisdiction in the proceeding. The claim against the relevant respondents is, in summary, for insolvent trading in contravention of the provisions of the Corporations Act 2001 (Cth). The Court has jurisdiction in relation to such a claim. Secondly, the proceeding is of a kind mentioned in r 10.42. In particular, it is of a kind mentioned in items 1 and 15 of r 10.42.

16    Thirdly, the affidavit material before the Court (including an affidavit of Ms Lucas dated 14 March 2018, filed in connection with an interlocutory application to join additional respondents to the proceeding and to amend the amended statement of claim) establishes that Ziziphus has a prima facie case for the relief claimed against Rahul Goel and Yu Lau in the proceeding.

17    It follows that the preconditions for making an order for service outside Australia are established. I also consider that it is appropriate in the circumstances to make such an order. A matter exists that warrants the use of the Court’s processes and justifies the involvement of foreign respondents.

18    For these reasons, I made the order for service out of the jurisdiction as set out above.

Associate:

Dated:    17 April 2018

SCHEDULE OF PARTIES