FEDERAL COURT OF AUSTRALIA

Tweedale v Carnival PLC trading as P&O Cruises [2021] FCA 1633

ORDERS

THE COURT ORDERS THAT:

1.    The applicants be granted leave pursuant to r 8.21(1)(c) of the Federal Court Rules 2011 (Cth) to correct the name of the second respondent to “Adventures in Paradise Limited (5559) (in liquidation)” in the originating application.

2.    By 4:00pm on Wednesday, 19 January 2022, the applicants are to:

(a)    amend the name of the second respondent on the originating application, with the date on which the amendment is made and the date of these orders to be recorded on the originating application at the same time in accordance with r 8.23(2) of the Federal Court Rules 2011 (Cth);

(b)    amend the name of the second respondent on the statement of claim with the date on which the amendment is made and the date of these orders; and

(c)    file by electronic means the originating application and statement of claim as amended in accordance with these orders.

3.    The applicants be granted leave to serve the originating application and statement of claim as corrected in accordance with orders 1 and 2 above, together with a copy of these orders and the accompanying reasons dated 22 December 2021, upon the second respondent in Vanuatu.

4.    The applicants be granted leave to effect service of the originating application and statement of claim on the solicitor for the second respondent, Mr Mark Fleming of Pacific Partners, in accordance with rule 5.9(2)(d) of the Civil Procedure Rules 2002 (Vanuatu).

5.    The applicants be granted leave to serve the originating application and statement of claim as corrected in accordance with orders 1 and 2 above, together with a copy of these orders and the accompanying reasons, on the third respondent in Vanuatu by personal service in accordance with rr 5.2 and 5.8 of the Civil Procedure Rules 2002 (Vanuatu).

6.    Costs be reserved.

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

ORDERS

THE COURT ORDERS THAT:

1.    The applicants be granted leave pursuant to r 8.21(1)(c) of the Federal Court Rules 2011 (Cth) to correct the name of the second respondent to “Adventures in Paradise Limited (5559) (in liquidation)” in the originating application.

2.    By 4:00pm on Wednesday, 19 January 2022, the applicants are to:

(a)    amend the name of the second respondent on the originating application, with the date on which the amendment is made and the date of these orders to be recorded on the originating application at the same time in accordance with r 8.23(2) of the Federal Court Rules 2011 (Cth);

(b)    amend the name of the second respondent on the statement of claim with the date on which the amendment is made and the date of these orders; and

(c)    file by electronic means the originating application and statement of claim as amended in accordance with these orders.

3.    The applicants be granted leave to serve the originating application and statement of claim as corrected in accordance with orders 1 and 2 above, together with a copy of these orders and the accompanying reasons dated 22 December 2021, upon the second respondent in Vanuatu.

4.    The applicants be granted leave to effect service of the originating application and statement of claim on the solicitor for the second respondent, Mr Mark Fleming of Pacific Partners, in accordance with rule 5.9(2)(d) of the Civil Procedure Rules 2002 (Vanuatu).

5.    The applicants be granted leave to serve the originating application and statement of claim as corrected in accordance with orders 1 and 2 above, together with a copy of these orders and the accompanying reasons, on the third respondent in Vanuatu by personal service in accordance with rr 5.2 and 5.8 of the Civil Procedure Rules 2002 (Vanuatu).

6.    Costs be reserved.

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

ORDERS

THE COURT ORDERS THAT:

1.    The applicants be granted leave pursuant to r 8.21(1)(c) of the Federal Court Rules 2011 (Cth) to correct the name of the second respondent to “Adventures in Paradise Limited (5559) (in liquidation)” in the originating application.

2.    By 4:00pm on Wednesday, 19 January 2022, the applicants are to:

(a)    amend the name of the second respondent on the originating application, with the date on which the amendment is made and the date of these orders to be recorded on the originating application at the same time in accordance with r 8.23(2) of the Federal Court Rules 2011 (Cth);

(b)    amend the name of the second respondent on the statement of claim with the date on which the amendment is made and the date of these orders; and

(c)    file by electronic means the originating application and statement of claim as amended in accordance with these orders.

3.    The applicants be granted leave to serve the originating application and statement of claim as corrected in accordance with orders 1 and 2 above, together with a copy of these orders and the accompanying reasons dated 22 December 2021, upon the second respondent in Vanuatu.

4.    The applicants be granted leave to effect service of the originating application and statement of claim on the solicitor for the second respondent, Mr Mark Fleming of Pacific Partners, in accordance with rule 5.9(2)(d) of the Civil Procedure Rules 2002 (Vanuatu).

5.    The applicants be granted leave to serve the originating application and statement of claim as corrected in accordance with orders 1 and 2 above, together with a copy of these orders and the accompanying reasons, on the third respondent in Vanuatu by personal service in accordance with rr 5.2 and 5.8 of the Civil Procedure Rules 2002 (Vanuatu).

6.    Costs be reserved.

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

ORDERS

THE COURT ORDERS THAT:

1.    The applicant be granted leave pursuant to r 8.21(1)(c) of the Federal Court Rules 2011 (Cth) to correct the name of the second respondent to “Adventures in Paradise Limited (5559) (in liquidation)” in the originating application.

2.    By 4:00pm on Wednesday, 19 January 2022, the applicant is to:

(a)    amend the name of the second respondent on the originating application, with the date on which the amendment is made and the date of these orders to be recorded on the originating application at the same time in accordance with r 8.23(2) of the Federal Court Rules 2011 (Cth);

(b)    amend the name of the second respondent on the statement of claim with the date on which the amendment is made and the date of these orders; and

(c)    file by electronic means the originating application and statement of claim as amended in accordance with these orders.

3.    The applicant be granted leave to serve the originating application and statement of claim as corrected in accordance with orders 1 and 2 above, together with a copy of these orders and the accompanying reasons dated 22 December 2021, upon the second respondent in Vanuatu.

4.    The applicant be granted leave to effect service of the originating application and statement of claim on the solicitor for the second respondent, Mr Mark Fleming of Pacific Partners, in accordance with rule 5.9(2)(d) of the Civil Procedure Rules 2002 (Vanuatu).

5.    The applicant be granted leave to serve the originating application and statement of claim as corrected in accordance with orders 1 and 2 above, together with a copy of these orders and the accompanying reasons, on the third respondent in Vanuatu by personal service in accordance with rr 5.2 and 5.8 of the Civil Procedure Rules 2002 (Vanuatu).

6.    Costs be reserved.

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

ORDERS

THE COURT ORDERS THAT:

1.    The applicant be granted leave pursuant to r 8.21(1)(c) of the Federal Court Rules 2011 (Cth) to correct the name of the second respondent to “Adventures in Paradise Limited (5559) (in liquidation)” in the originating application.

2.    By 4:00pm on Wednesday, 19 January 2022, the applicant is to:

(a)    amend the name of the second respondent on the originating application, with the date on which the amendment is made and the date of these orders to be recorded on the originating application at the same time in accordance with r 8.23(2) of the Federal Court Rules 2011 (Cth);

(b)    amend the name of the second respondent on the statement of claim with the date on which the amendment is made and the date of these orders; and

(c)    file by electronic means the originating application and statement of claim as amended in accordance with these orders.

3.    The applicant be granted leave to serve the originating application and statement of claim as corrected in accordance with orders 1 and 2 above, together with a copy of these orders and the accompanying reasons dated 22 December 2021, upon the second respondent in Vanuatu.

4.    The applicant be granted leave to effect service of the originating application and statement of claim on the solicitor for the second respondent, Mr Mark Fleming of Pacific Partners, in accordance with rule 5.9(2)(d) of the Civil Procedure Rules 2002 (Vanuatu).

5.    The applicant be granted leave to serve the originating application and statement of claim as corrected in accordance with orders 1 and 2 above, together with a copy of these orders and the accompanying reasons, on the third respondent in Vanuatu by personal service in accordance with rr 5.2 and 5.8 of the Civil Procedure Rules 2002 (Vanuatu).

6.    Costs be reserved.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    These proceedings comprise five related actions brought by various applicants against the same respondents: namely, the first respondent, Carnival PLC Trading as P&O Cruises Australia (P&O Cruises), the second respondent, Roger Jenkins as liquidator of Adventures in Paradise Limited (Company Number 5559) (the liquidator), and the third respondent, Mr Guillaume Kasten. Adventures in Paradise Limited (5559) (in liquidation) (Adventures in Paradise) entered into liquidation on 24 August 2018 and was deregistered as a company on 2 May 2019.

2    The applicants in each proceeding are as follows:

a)    George and Rowena Tweedale (NSD 967 of 2019);

b)    Deborah, Riley and Vaughn Rohr (NSD 969 of 2019);

c)    Moyna and Brian Exley (NSD 1016 of 2019);

d)    Margaret Lynette Lyne (NSD 1017 of 2019); and

e)    Ellen Hatfield as litigation representative for the estate of Jill Hatfield (NSD 1019 of 2019).

(Collectively referred to as the applicants.)

3    By originating applications and statements of claim filed on 20 June 2019 (NSD 967 and NSD 969 of 2019) and 27 June 2019 (NSD 1016, 1017 and 1019 of 2019) (the originating applications and the statements of claim), the applicants seek damages for alleged breaches of contract, breaches of the Australian Consumer Law (ACL) in Schedule 2 to the Competition and Consumer Act 2010 (Cth), and negligence.

4    The applicants are represented by Shine Lawyers in the proceedings numbered NSD 967 and 969 and by Stacks Goudkamp in the remaining matters. Shine Lawyers and Stacks Goudkamp are collaborating in each of the actions.

5    The applicants seek orders to amend the name of the second respondent from the liquidator to the company in liquidation, “Adventures in Paradise Limited (5559) (in liquidation)” in the originating applications, the statement of claims and the genuine steps statements. Alternatively, they seek leave to substitute Adventures in Paradise Limited (5559) (in liquidation) for the liquidator, as the second respondent. Assuming that the amendments or substitutions sought are made, they then seek leave to serve the originating applications and statements of claim on Adventures in Paradise in Vanuatu on the liquidator or the solicitor for Adventures in Paradise, Mr Mark Fleming, in accordance with Vanuatu law. The applicants also seek leave to serve the originating application and statement of claim on the third respondent personally in Vanuatu.

6    For the reasons set out below, orders should be made under r 8.21(1)(c) of the Federal Court Rules 2011 (Cth) (the FCR) in each matter to correct the name of the second respondent to “Adventures in Paradise Limited (5559) (in liquidation)” in the originating applications. Consequential amendments should also be made to the statements of claim. These amended documents should be filed in accordance with the Court’s orders. Leave should also be granted to serve Adventures in Paradise and the third respondent outside the jurisdiction and for substituted service on the former.

2.    PROCEDURAL HISTORY

7    Initially by interlocutory applications filed on 23 December 2020 in each matter (the first interlocutory applications), the applicants sought leave to serve the originating applications and the statements of claim outside Australia on the second respondent and Adventure in Paradise’s solicitor, Mr Mark Fleming of Pacific Partners, orders for substituted service, and in the alternative, orders for deemed service, pursuant to rr 10.43, 10.49 and 10.48 respectively of the FCR.

8    However, after hearing argument and on the morning when judgment on the first interlocutory applications was to be delivered on 27 April 2021, I instead called the matters on for case management in order to raise concerns with the applicants that they had sued the liquidator of the second respondent, whereas it was apparent from the pleadings that they had intended to bring proceedings against Adventures in Paradise for allegedly negligent acts undertaken by it. No negligent acts were pleaded against the liquidator and indeed the company was not placed in liquidation until some time after the accident. As a consequence, the applicants sought time in which to obtain instructions and the matters were adjourned for further case management on 10 May 2021.

9    At the case management hearing on 10 May 2021, orders were made in each matter setting a timetable for the filing of any application for joinder and/or amendment of the applicants’ originating applications and statements of claim, together with supporting affidavits, with any such applications being listed for hearing on 23 June 2021. In the event, that hearing was vacated on the basis that the matter could be determined on the papers.

10    On 7 (NSD 1016 of 2019) and 8 June 2021 (NSD 967, 969, 1017 and 1019 of 2019), the interlocutory applications the subject of the present judgment were filed in each matter, together with supporting affidavits (the current interlocutory applications). I have earlier summarised the orders sought in each application. Written submissions filed on 7 and 8 June 2021 in support of the current interlocutory applications in each matter were relevantly in identical terms and I have therefore referred to them collectively in these reasons as the applicants’ June submissions. Further submissions were filed on 28 October 2021 addressing discrete issues raised by me with the applicants in the course of finalising the judgment, as I later explain (the applicants’ October submissions).

11    The interlocutory applications also seek leave to arrange for the appointment of a liquidator for the sole purpose of pursuing a claim against Adventures in Paradise’s insurer, AIG, by way of indemnity in relation to the applicants’ claims. This order is sought in the event that Adventures in Paradise “continues in its refusal to seek an indemnity in respect of [the applicants’] claim from its insurer, AIG” (see the current interlocutory applications at [7]). The applicants’ June submissions briefly addressed this order, stating that:

40. The defendant acknowledges that the application may be premature and will be subject to Your Honour’s ruling concerning the other orders sought in the Application. The Applicant will make appropriate submissions if required.

41. Alternatively, if it is considered futile to make an order for service on the correctly named second respondent, the order is pressed.

12    It appears clear that the reference to the “defendant” at [40] of the applicants’ June submissions is intended to be a reference to the applicant(s). Given the other conclusions which I have reached, it is unnecessary to address this aspect of the application at this stage.

13    Finally, I note that this matter has suffered from significant delays due, among other things, to deficiencies in the way the interlocutory applications were prepared, including the failure to lead evidence on certain essential elements required to be satisfied before leave to serve abroad could be granted, the applicants’ mistake in naming the liquidator as the second respondent in each of the matters instead of Adventures in Paradise, and the applicants’ failure to address the relevance of limitation periods to the applications to amend or substitute the second respondent. With respect, a higher standard in the conduct of proceedings in the Federal Court is to be expected, particularly where counsel has been briefed and the proceedings at this stage are ex parte with respect to the second and third respondents. In this regard, I would emphasise that I am not making a finding that the legal representatives have acted so as to breach any professional or other obligations or suggesting that such a finding might be made. Rather, against that context, I wish to highlight how imperative it is for the parties going forward to do all that is reasonably in their power to progress this matter efficiently to trial and to facilitate the Court’s task in resolving the dispute, in line with the obligations under ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth).

3.    EVIDENCE

14    In support of the interlocutory applications, the applicant(s) in each matter respectively relied upon:

(1)    the affidavits of Sara Kaurin, solicitor, Shine Lawyers, sworn 7 June 2021 and 28 October 2021 (NSD 967 of 2019);

(2)    the affidavits of Ms Kaurin sworn 7 June 2021 and 28 October 2021 (NSD 969 of 2019);

(3)    the affidavits of Rita Yousef, solicitor, Stacks Goudkamp, affirmed 7 June 2021 and 28 October 2021 (NSD 1016 of 2019);

(4)    the affidavits of Ms Yousef affirmed 7 June 2021 and 28 October 2021 (NSD 1017 of 2019); and

(5)    the affidavits of Ms Yousef affirmed 7 June 2021 and 28 October 2021 (NSD 1019 of 2019).

15    The contents of the affidavits of Ms Kaurin and Ms Yousef listed at [14] above are relevantly identical. For convenience, therefore, I refer collectively to the Kaurin/Yousef June and Kaurin/Yousef October affidavits.

16    The Kaurin/Yousef June affidavits set out, among other things, the history of the proceedings, unsuccessful attempts at effecting service, matters pertaining to an insurance policy in place between the first respondent and Adventures in Paradise which was issued on 14 December 2015, and correspondence with AIG’s solicitor and Adventure in Paradise’s liquidator and solicitor respectively.

17    Rule 10.43(3)(c) of the FCR provides that an application for leave to serve an originating application outside Australia must be accompanied by an affidavit stating, among other things, 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.

18    In line with this rule, Ms Kaurin and Ms Yousef depose that neither the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters concluded at the Hague on 15 November 1965 (the Hague Convention) nor any other specific convention permit the service of the originating applications and statements of claim in Vanuatu, rather than the law of Vanuatu. The Kaurin/Yousef June affidavits therefore each annex Part 5 of the Civil Procedure Rules 2002 (Vanuatu) (CPR Vanuatu) setting out the rules for the filing and service of documents in judicial proceedings in Vanuatu as proof, which I accept, that the proposed methods of service are permitted by the law of Vanuatu.

4.    BACKGROUND

4.1    Background to the claims

19    It is necessary to set out briefly the background to the claims, as pleaded, and the interlocutory applications as outlined in the Kaurin/Yousef June affidavits. I emphasise that my findings as to the factual background are necessarily preliminary in nature, given that they are made in the context of the interlocutory applications. They do not pre-empt any findings of fact which I may make in final judgment.

20    Each of the applicants booked a cruise with P&O Cruises in the first half of 2016. In each case, the bookings were for an 11-day South Pacific cruise on the Pacific Dawn departing from Brisbane on 14 June 2016 and returning on 25 June 2016.

21    In each case, the applicants purchased a Shore Tour (the Shore Tour) called the Ekasup Cultural Village tour. In the case of Ms Hatfield and Ms Lyne, the cruise booking included a “Mystery Tour in Vila” which transpired to be the Shore Tour, while the other applicants booked the same tour on board the ship. The applicants allege that at all material times, P&O Cruises represented itself as the principal and/or sole provider of the Shore Tours known as P&O Shore Tours.

22    On 20 June 2016 and whilst passengers on a bus on the Shore Tour, the applicants and other passengers were seriously injured when the bus in which they were travelling veered onto the incorrect side of the road and collided with an oncoming bus. The applicants claim damages for the losses and injuries they allegedly sustained as a result of the accident.

23    The applicants claim that the Shore Tour was arranged by Adventures in Paradise under its undated Tour Operator Agreement with P&O Cruises. (I note in this regard that the Tour Operator Agreement was annexed to the June Yousef affidavits. While the June Kaurin affidavits purport to annex this document at Annexure SK-2, in fact they annex the Tour Operator Manual twice. However, the deficiency is not fatal in circumstances where the Tour Operator Agreement was correctly annexed to affidavits earlier filed in those matters in support of essentially the same orders.) It is alleged that Adventures in Paradise in turn engaged a driver, Mr Kasten, for the purposes of the Shore Tour, who is the third respondent in the proceedings. Mr Kasten was the driver of the bus on 20 June 2016 and is alleged to have caused the accident by his negligent driving, for which Adventures in Paradise is said to be vicariously liable. In the alternative, it is alleged that the accident was caused by the negligence of P&O Cruises in, among other things, failing to engage a suitably competent driver and ensure that transport services delivered by its servants and/or agents were delivered in a safe manner.

24    Under the Tour Operator Agreement, among other things, the applicants also allege that Adventures in Paradise:

(1)    warranted that its Shore Excursions would satisfy the highest professional customer service and safety standards applicable to its industry, all applicable laws and regulations, and the applicable Tour Operator Guidelines (cl 6.2(a));

(2)    acknowledged that it would comply with the Tour Operator Guidelines (cl 6.3);

(3)    would ensure that its employees and subcontractors exercise reasonable care for Guests’ safety at all times (cl 6.4);

(4)    acknowledged that the control and responsibility of all aspects of Shore Excursions remain exclusively with it (cl 6.5);

(5)    was responsible for procuring and maintaining appropriate insurance coverage for each Shore Excursion in accordance with requirements established from time to time (cl 10.1); and

(6)    agreed that, if Adventures in Paradise subcontracted for any services, the subcontractor must also provide appropriate insurance coverage meeting certain requirements and, if the subcontractor could not, Adventures in Paradise’s insurance would provide contingent liability covering the difference in conditions to the subcontractor’s insurance (cl 10.2).

25    It is alleged that at the time of the accident, Adventures in Paradise had a policy of insurance with AIG covering the risk of bodily injuries: Kaurin/Yousef June affidavits at [38], reproduced at Annexures SK-22 and RY-22 respectively.

4.2    Commencement of these proceedings and attempts to serve the second respondent

26    The applicants submitted that on 6 October 2017, their solicitors notified Adventures in Paradise of their intention to institute proceedings, subject to waiting for the applicants’ injuries to stabilise before filing the same. While this may be uncontentious, there was no evidence to support the submission and as such, I make no finding on the issue.

27    On 24 August 2018, Adventures in Paradise went into liquidation (Annexures SK-18/RY-18). Mr Jenkins, who is presently named as the second respondent, was appointed as liquidator (Kaurin/Yousef June affidavits at [19]).

28    On 2 May 2019, Adventures in Paradise was deregistered as a company (Kaurin/Yousef June affidavits at [20] and Annexures SK-8/RY-8).

29    Each of these proceedings were commenced in the Federal Court with the filing of the originating applications accompanied by statements of claim. As earlier mentioned, Shine Lawyers and Stacks Goudkamp, who between them act for the applicants, are collaborating in all of the related actions the subject of this judgment.

30    Ms Kaurin of Shine Lawyers deposes to having attempted on numerous occasions to telephone Mr Jenkins but was only able to make contact with him on 18 July 2019 by telephone for the purpose of arranging service of these Federal Court proceedings upon him. Mr Jenkins advised, in effect, that Adventures in Paradise was still in the process of being liquidated and that the originating application would need to be served on the solicitors for Adventures in Paradise. Mr Jenkins also said that the application could be forwarded to him and he would provide the originating application to the solicitors. The alleged contents of that telephone conversation were summarised by Ms Kaurin in her email to Mr Jenkins later that day headed “Claim against Adventures in Paradise”, which was copied to Ms Yousef (Kaurin/Yousef June affidavits at [21] and Annexures SK-9/RY-9). Ms Kaurin asked Mr Jenkins to provide the contact details for Adventures in Paradise’s solicitors.

31    That email was forwarded by Mr Jenkins to Mr Mark Fleming of Pacific Partners, which were the liquidator’s solicitors. On 24 July 2019, Mr Fleming wrote to Ms Kaurin advising that:

Pursuant to sch4, sect 4 of the Companies (Insolvency and Receivership) Act No. 3 of 2013, your clients cannot commence any claim without the liquidators [sic] consent (which is not given), or by order of the court upon application. Any such application I suggest will be opposed.

I am instructed that your clients have been advised previously the company insurer [AIG] has been notified, and suggest you contact them directly

(Kaurin/Yousef June affidavits at [22] and Annexures SK-10/RY-10.)

32    Clause 4 of Part 3 of Sch 4 of the Vanuatu Companies (Insolvency and Receivership) Act No. 3 of 2013 (Vanuatu) to which the liquidator referred is in evidence and, in line with Mr Fleming’s advice, indicates that, subject to an exception not presently relevant, it is not possible to commence any claims against AIP without the liquidator’s consent or court order (Kaurin/Yousef June affidavits at [23] and Annexures SK-11/RY-11). It is clear from this evidence that Mr Fleming was proceeding on the basis that the action was pursued directly against Adventures in Paradise.

33    On 6 August 2019, Mr Fleming was advised by an email from Ms Kaurin (copied to the liquidator, Ms Yousef and junior counsel) headed “RE: Claim against Adventures in Paradise” that the applicants “are willing to provide an undertaking not to proceed and recover damages against Adventures in Paradise to the extent that it is not indemnified by the insurer. We are therefore proceeding against Adventures in Paradise in name only for the purpose of obtaining access to its valid policy of insurance.” On that basis, the applicants sought Mr Fleming’s consent to proceed against Adventures in Paradise with an undertaking acceptable to the liquidator (Kaurin/Yousef June affidavits at [24] and Annexures SK-12/RY-12). A follow-up email was sent by Ms Kaurin to Mr Fleming (and copied to the same persons) on 13 August 2019 seeking a response to the earlier email.

34    On 19 August 2019, HWL Ebsworth Lawyers, solicitors for AIG, wrote to Ms Kaurin regarding the following matters:

•    Adventures in Paradise Limited ats Deborah Christine Rohr & Ors; and

•    Adventures in Paradise Limited ats George & Rowena Tweedale.

35    In the letter, HWL Ebsworth Lawyers stated that “AIG will not accept service of any documents on behalf of Adventures in Paradise Limited” (Kaurin/Yousef June affidavits at [26] and Annexures SK-14/RY-14).

36    On 24 August 2019 and 26 August 2019, Ms Yousef and Ms Kaurin respectively emailed Mr Fleming, copied to Mr Jenkins, and advised that an application would be filed in the Supreme Court of Vanuatu seeking leave to commence proceedings against Adventures in Paradise in the absence of advice by 30 August 2019 that he would accept service. On 26 August 2019, Mr Fleming responded to Ms Kaurin and Ms Yousef, copied to Mr Jenkins, advising that “[his] client” would not consent to service, “but rather will abide by the courts [sic] directions following any application made in which the merits of the proposed claim will need to be put forward” (Kaurin/Yousef June affidavits at [27]–[28] and Annexures SK-15/RY-15 and SK-16/RY-16). In the context of the letter, Mr Fleming was clearly referring to Adventures in Paradise (see eg his earlier description of himself in the letter as “the company lawyer”). Significantly, the letter expressly identified the error in naming the liquidator instead of Adventures in Paradise, stating that:

If the court was inclined to grant leave, the defendant should be named as Adventures in Paradise Ltd (In Liquidation). No reference should be made to the liquidator.

37    Surprisingly, however, the applicants continued to name the liquidator as the second respondent in these proceedings, instead of Adventures in Paradise, which they now accept was an error they seek belatedly to correct. That notwithstanding, it is clear from his detailed email that Mr Fleming was in no doubt that the intended respondent was Adventures in Paradise (which he referred to as “AIP”). Thus, among other things, Mr Fleming also stated in that email that:

Your clients [sic] claims seem to be based upon the premise that AIP owed some duty or [sic] care to your clients, (which is denied) it breached this, and loss was suffered consequentially. The fundamental issue is that AIP did not own or operate any tour bus involved, and was simply an agent. Also seatbelts are not a legal requirement in Vanuatu.

(Errors in the original.)

38    On 21 October 2019, each of the applicants applied for “[l]eave pursuant to section 4, schedule 4 of the Companies (Insolvency and Receivership) Act No. 3 of 2013 to commence proceedings against Adventures in Paradise Ltd (5559)” in the Supreme Court of Vanuatu. Adventures in Paradise Ltd (5559) (in liquidation) was also correctly named as the defendant in the title of the Vanuatu proceeding. Leave was sought on the basis that, while Adventures in Paradise Ltd was in liquidation, “a policy of insurance covering the defendant’s liability was in place at the time of the motor vehicle accident.” As such, the applicants sought orders permitting commencement of proceedings “conditional upon the proceedings being restricted to a claim being fully indemnified by the policy of insurance.”

39    Due to procedural and agent delays in Vanuatu, that application was not heard until 20 May 2020 (Kaurin/Yousef June affidavits at [30]).

40    On 27 May 2020, the Supreme Court of Vanuatu rejected the application to proceed against Adventures in Paradise (the Vanuatu judgment) (Annexures SK-18/RY-18 to the Kaurin/Yousef June affidavits). In that regard, the judge noted that the liquidator had advised that he was hoping that a sale of Adventures in Paradise’s land would be completed that week, its debts fully discharged and a final order to have Adventures in Paradise removed from the register applied for within a month (Vanuatu judgment at [9]). Her Honour concluded that it was necessary to decline the application because there was no evidence of the terms and conditions of any policy of insurance covering Adventures in Paradise at the time of the motor vehicle accident (Vanuatu judgment at [17]). Her Honour also referred to other matters that counted against the grant of leave including prejudice to the creditors (as the liquidation would be delayed), the apparent insufficiency of the applicants’ undertaking to defray the cost of keeping Adventures in Paradise on foot during the period of litigation, and the applicants’ delay in commencing proceedings (Vanuatu judgment at [18]).

41    Subsequently, on 10 September 2020 the solicitors for P&O Cruises produced to the applicants a copy of the insurance policy taken out by Adventures in Paradise with AIG in response to an application for preliminary discovery (Kaurin/Yousef June affidavits at [37]–[38] and Annexures SK-22/RY-22). The applicants submit that that policy would provide cover for the applicants’ damage and loss and may also cover the third respondent’s negligence (applicants’ June submissions at [20]).

42    On 6 November 2020, Stacks Goudkamp sent a letter to Mr Fleming and Mr Jenkins seeking an update as to the status of Adventures in Paradise, noting that during oral submissions at the hearing of the application in Vanuatu, Mr Fleming had informed the Court that the liquidator hoped that the liquidation process would be completed within a month. The letter also advised that if the liquidation had come to an end and all creditors and expenses had been paid, the applicants considered that Mr Jenkins had no interest in continuing to act as liquidator in opposition to the applicants’ claim and, subject to Mr Jenkins’ response, advised of their intention to proceed to appoint a new liquidator to continue the claim made on the insurance policy in relation to the damages sought by the applicants (Kaurin/Yousef June affidavits at [39] and Annexures SK-23/RY-23).

43    On 16 December 2020, the applicants were directed to file and serve any application for substituted service in the current proceedings by 18 December 2020. On 21 December 2021, the time for filing and service of the application for substituted service and any application for service outside the jurisdiction in relation to the second respondent was extended to 22 December 2020.

44    On 23 December 2020, the interlocutory applications were filed seeking leave to serve the originating applications and the statements of claim outside Australia, orders for substituted service and in the alternative, orders for deemed service, pursuant to rr 10.43, 10.49 and 10.48 respectively of the FCR. In view of the conclusions which I have reached (as explained below), it is unnecessary to consider the alternative order sought for deemed service under r 10.48 of the FCR.

45    After follow-up emails and other attempts to obtain information about the status of the liquidation of Adventures in Paradise, on 3 March 2021 a response was received from Mr Jenkins advising simply that “[a]s information regarding the Liquidation is confidential I am not at liberty to assist” (see Kaurin/Yousef June affidavits at [53]–[57]). As such, it is reasonable to infer that at that time the liquidation process had not yet been completed and that were it completed, Mr Jenkins would have advised the solicitors for the applicants, as that information could not on any view be confidential. While I have not had the opportunity to hear any explanation that Mr Jenkins may have and therefore would not make any firm finding against him, the indications are that he has not been cooperative to date.

46    At the hearing on 16 February 2021 with respect to the first interlocutory applications, P&O Cruises indicated that they did not oppose nor consent to the orders then sought by the applicants. They did not file any submissions or otherwise seek to be heard on the current interlocutory applications.

5.    CONSIDERATION

5.1    The application for leave to amend/correct the name of the second respondent

47    The applicants seek orders amending the name of the second respondent, the liquidator, to Adventures in Paradise (5559) (in liquidation) on the basis that “the incorrect naming is a “mistake in the name of the party to the proceeding” and may be corrected under Rule 8.21(1)(c)” of the FCR (the first alternative). Alternatively, the applicants submit that the error is in the identity of the party and therefore leave to amend the name is sought under rule 8.21(1)(d) (the second alternative). In the further alternative, an order is sought under rule 8.21(1)(f) to substitute the proper party, Adventures in Paradise (5553) (in liquidation), for the liquidator (the third alternative).

48    Rule 8.21 relevantly provides that:

(1)     An applicant may apply to the Court for leave to amend an originating application for any reason, including:

…

(c)     to correct a mistake in the name of a party to the proceeding; or

(d)     to correct the identity of a party to the proceeding; or

…

(f)     to substitute a person for a party to the proceeding; …

49    Rule 8.21(1) is not an exhaustive statement of the grounds on which an originating application may be amended: McGraw-Hill Financial Inc v Clurname Pty Ltd [2017] FCAFC 211; (2017) 123 ACSR 467 at [23] (the Court).

50    Rule 8.22 provides that if an originating application is amended with the effect that another person is substituted as a party to the proceeding, the proceeding is taken to have started for that person on the day the originating application is amended. The alterations must be made on the originating application under rule 8.23, which also requires the date on which the amendment is made and the date on which the order permitting the amendment is made, to be marked on the originating application. Rule 8.24 is also relevant, which provides that:

An order that an applicant be permitted to amend an originating application ceases to have effect unless the applicant amends the originating application in accordance with the order within:

(a) the period specified in the order; or

(b) if no period is specified in the order – 14 days after the date on which the order permitting the amendment was made.

Note: If the Court permits an applicant to amend an originating application, the Court may also make orders about the procedure for amending the originating application and serving the originating application.

51    As to the first alternative on which the applicants rely, the applicants submit that the power under rule 8.21(1)(c) includes the situation where a party, intending to sue a person identified by a particular description, was mistaken as to the name of the person who answered that description.

52    That interpretation is supported by analogy by the High Court’s decision in Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 (Bridge Shipping). That case concerned the application of rule 36.01(4) of the then Rules of the Supreme Court of Victoria which permitted the Court to order the amendment of any document in a proceeding including “[a] mistake in the name of a party … whether or not the effect is to substitute another person as a party …”. In his reasons, with which Brennan and Deane JJ agreed, McHugh J held at 260–1 that:

Rule 36.01(4) is a remedial rule and should be given a beneficial interpretation. It is proper to give it the widest interpretation which its language will permit. It should be interpreted to cover not only cases of misnomer, clerical error and misdescription but also cases where the plaintiff, intending to sue a person he or she identifies by a particular description, was mistaken as to the name of the person who answers that description.

(Footnotes omitted.)

53    In my opinion, this is not a case where there was a mistaken belief that the liquidator was the party responsible for the actions said to give rise to the action for damages. Rather, it is clear from the pleadings in each of the matters that the intention was always to sue Adventures in Paradise, as well as P&O Cruises and the third respondent. Thus, in each of the statements of claim filed together with the originating applications, it is pleaded that the second respondent at all material times is and was a private company registered in Vanuatu and trading as “Adventures in Paradise” and provided services to cruise ships including shore tours and associated transportation. Furthermore, the conduct complained of in the pleadings was relevantly undertaken by Adventures in Paradise prior to liquidation.

54    That this was the applicants’ intention is also confirmed by the course of correspondence (earlier summarised) between the applicants, on the one hand, and the liquidator and Adventure in Paradise’s solicitor, Mr Fleming, on the other hand, in which the applicants sought to serve the proceedings on Adventures in Paradise. It is also confirmed by the applications brought in the Supreme Court of Vanuatu by the applicants for leave to commence proceedings against Adventures in Paradise (3335) (in liquidation). As such, this is a clear case in my view where there was a misdescription of the corporate body in the title of each proceeding which was a mere misnomer, as the applicants submit. Nor is there any apparent prejudice to Adventures in Paradise in circumstances where it was well aware through the liquidator and Mr Fleming from all of the communications with the applicants’ solicitors that it was the intended respondent.

55    Where an order under rule 8.21 has the effect of substituting another party for the party mistakenly named with retrospective effect, it is relevant for the Court to take into account the question of whether the limitation period has expired: see eg Bridge Shipping and Laing v Victoria (2005) 144 FCR 462. As I have earlier mentioned, this issue was not addressed by the applicants until correspondence from my Associate on my behalf sought submissions from the applicants and further submissions on this issue were filed on 28 October 2021.

56    The question of whether the limitation periods may have expired was addressed in the October submissions filed by those applicants represented by Stacks Goudkamp (the SG applicants). In their October submissions, the SG applicants accepted (applying the choice of law rules articulated in Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491 (Zhang)) that the limitation period under s 50C of the Limitations Act 1969 (NSW) applied but would have expired three years after 5 September 2018 when each applicant received legal advice and learnt of the facts supporting the fault of the second respondent. It would also appear that the limitation periods would have expired in November 2021 in relation to those applicants represented by Shine Lawyers (the SL applicants).

57    In their October submissions, the SG applicants submitted that if the Court found that it was necessary for an order to be made substituting the second respondent, they sought orders that the substitution orders take effect nunc pro tunc from the date on which the applications for leave to amend were filed (being 7 June 2021 for NSD 1016 of 2019 and 8 June 2021 for all of the other proceedings). Those orders were sought on the following basis:

It is appropriate for your Honour to make the Orders nunc pro tunc if the purpose of the provision is as well served by deciding the question of leave after the proceedings as by deciding the question before the proceedings were commenced (Jol v State of New South Wales (1998) 45 NSWLR 283 cited in Whisprun Pty Ltd v Sams and Ors [2002] NSWCA 394 [at] [7]). In Re Testro Bros Consolidated Ltd [1965] VicRp 4 [at] 35, Sholl J had regard to the construction of the relevant legislation and gave orders nunc pro tunc becuase it was aimed at preserving the control of the Court and was of a directory character, rather than set up an absolute bar like a statute of limitations. The rules relied upon in the current case (including Rule 8.22) are of a similar directory character and can accordingly be made on these principle by allowing orders to be dated nunc pro tunc, 7 June 2021.

Further, it is submitted that the Orders [to be made with effect nunc pro tunc], in conjunction with Rule 8.22 are “as well served” (per the principle in Jol) by allowing Orders to be made nunc pro tunc on 7 June 2021 (the date of the filing of the Application for leave to amend) for the following reasons:

a)    The period of time between the date of discoverability of the “Stacks Goudkamp” Applicants and now is 3 years and 6 weeks, just outside the limitation period.

b)    The Application to amend or substitute the name of the Second Respondent was made on 7 June 2021, within the 3 year limitation perioid by about two and a half months.

c)    The company known as Adventures in Paradise has always been understood to be the real Second Respondent by all parties.

d)    It is submitted that the overriding interests in the current circumstances involve a correction of the name of the [Second Respondent], and as such your Honour should exercise the power to make Orders four months earlier than now, nunc pro tunc.

58    However, I agree with the SG applicants that the potential application of limitation periods is ultimately not a relevant factor to any of the applications for leave to amend the name of the second respondent. This is because the effect of the amendment in each of the proceedings is not to substitute another person as the second respondent but merely to correct an error in the name of the second respondent for the reasons which I have given. In any event, if it were necessary to make such an order, I agree with the SG applicants for the reasons that they give that these are appropriate cases in which to make orders with effect nunc pro tunc.

59    Finally, in circumstances where no submissions were made as to the necessity for, and power to order, the amendment to the genuine steps statements, I have assumed that this aspect of the interlocutory applications was not pressed. This does not preclude, of course, this aspect of the interlocutory applications from being raised again in the future should that be necessary.

5.2    The requirements for leave to serve outside Australia (FCR r 10.43)

60    Rule 10.43(1), which deals with applications for leave to serve an originating application outside Australia, provides that:

(1)    Service of an originating application on a person in a foreign country is effective for the purpose of a proceeding only if:

(a)    the Court has given leave under subrule (2) before the application is served; or

(b)    the Court confirms the service under subrule (6); or

(c)    the person served waives any objection to the service by filing a notice of address for service without also making an application under rule 13.01.

(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.

61    Rule 10.43(4) provides that the onus lies upon a party applying for leave under r 10.43(2) to satisfy the Court of three matters, namely:

(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.

62    Rule 10.42 in turn provides that subject to r 10.43, an originating application may be served on a person in a foreign country in a proceeding of a kind mentioned in the table contained within the rule, as discussed below.

5.3    Does the Court have jurisdiction (FCR r 10.43(4)(a))?

63    As to the first of these matters, I am satisfied that the Court has jurisdiction for the following reasons.

(1)    Breaches of federal law (the ACL) are alleged against P&O Cruises so that the claim falls within federal jurisdiction.

(2)    The claims by the applicants against the second respondent for negligence and breach of contract and against the third respondent for negligence arise out of a common substratum of fact as that which underlies the claims against P&O Cruises such that all of the claims are part of the same “matter”: Costa Vraca Pty Ltd v Bell Regal Pty Ltd [2003] FCAFC 305 at [20] (the Court) and the authorities there cited. The applicants plead that they were injured in an accident in Vanuatu as a result of the negligence of the third respondent who had been engaged by the second respondent to provide services and tours to guests of the first respondent in accordance with the Tour Operator Agreement between the first and second respondents.

(3)    The applicants, who are in Australia, plead in their respective statements of claim that they continue to suffer loss and the effects of the injuries suffered as a result of the accident, including past and future economic loss and medical expenses.

5.4    Is the proceeding of a kind mentioned in the table in FCR r 10.42 (FCR r 10.43(4)(b))?

64    Secondly, the applicants contend that the proceeding is of a kind mentioned in the table in r 10.42, namely, item 5 referring to “[p]roceeding based on, or seeking the recovery of, damage suffered wholly or partly in Australia caused by a tortious act or omission (wherever occurring)”. I agree with this contention. In this regard, with respect to the predecessor provision to item 5 of the table, Allsop J (as his Honour then was) held in Heilbrunn v Lightwood PLC [2007] FCA 433 that:

10    It is clear from a number of cases in New South Wales decided in the 1980s on a cognate rule that damage in this rule does not mean the injury which completed the tort, but rather it means the disadvantage or detriment suffered by the plaintiff as a result of the tortious act or omission of the defendant. In this respect the word “damage” in this context has a wider meaning than injury: Brix-Neilsen v Oceaneering Australia Pty Ltd [1982] 2 NSWLR 173; Challenor v Douglas [1983] 2 NSWLR 405; Flaherty v Girgis (1985) 4 NSWLR 248 (the contrary proposition was not pressed in the High Court where the debate concerned constitutional questions: Flaherty v Girgis (1987) 162 CLR 574). These cases concerned personal injury where a degree of personal suffering or expenditure had been suffered or made in New South Wales, the tort having wholly occurred in another State. The same logic was applied to property cases in the cargo claim matter of Darrell Lea Chocolate Shops Pty Ltd v Spanish-Polish Shipping Co Inc (The ‘Katowice II) (1990) 25 NSWLR 568 and see also Colosseum Investment Holdings Pty Ltd v Vanguard Logistic Services Pty Ltd [2005] NSWSC 803 at [40]-[50].

(Emphasis added.)

65    It follows that even where the tortious act or omission occurred abroad, item 5 captures cases where, as alleged here, damage, disadvantage or detriment has been suffered wholly or partly in Australia as a result of, or consequential on, the tortious act or omission.

66    I also note that the present case may also have been of a kind captured by other items in the table in r 10.42 but, in the absence of submissions addressing any other items, it would be inappropriate for me to so find and unnecessary in view of the conclusion which I have reached.

5.5    Have the applicants established a prima facie case (FCR r 10.43(4)(c))?

67    Thirdly, the requirement to establish a prima facie case in r 10.43(4)(c) is not an onerous one. As the Full Court observed in Ho v Akai Pty Ltd (in liq) [2006] FCAFC 159; (2006) 247 FCR 205:

10.    As has been observed on many occasions, the prima facie case requirement has to be met at the outset, usually on an ex parte basis, and without the advantage of discovery and other procedural aids to the making out of a case: see eg Merpro Montassa Ltd v Conoco Specialty Products Inc (1991) 28 FCR 387 at 390. It “should not call for a substantial inquiry”: WSGAL Pty Ltd v Trade Practices Commission (1992) 39 FCR 472 at 476; see also Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539 at 549. For present purposes it is sufficient to say that a prima facie case for relief is made out if, on the material before the court, inferences are open which, if translated into findings of fact, would support the relief claimed: Western Australia v Vetter Trittler Pty Ltd (in liq) (1991) 30 FCR 102 at 110. Or, to put the matter more prosaically as Lee J did in Century Insurance (in prov liq) v New Zealand Guardian Trust Ltd [1996] FCA 376:

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 litigation in the Court in Australia is justified.

(Emphasis added.)

68    Thus, Yates J explained in Vringo Infrastructure Inc v ZTE (Australia) Pty Ltd (No 4) [2015] FCA 177; (2015) 323 ALR 138 at [41] that “… it is not the task of the Court to reach a definitive conclusion as to the accuracy of the facts advanced by the parties or to express any preference for competing accounts.”

69    Furthermore, it suffices if there is a prima facie case for all or any of the relief claimed against another respondent who is within the jurisdiction: BY Winddown Inc v Vautin [2016] FCAFC 168; (2016) 249 FCR 262 at [45] (the Court). There is no warrant for reading additional words into the text of the rule so as to require a prima facie case to be established against the person outside the jurisdiction who is to be served: ibid. That notwithstanding, as the submissions for the applicants focused upon the question of whether the applicants have established a prima facie case for the relief claimed against the second respondent, I will focus upon that issue.

70    Applying these principles, a prima facie case has been established against the second and third respondents. First, the evidence is sufficient to establish a prima facie case that the third respondent, as the driver of the bus, owed a duty of care to the applicants as passengers on the bus which he was driving when the accident occurred, and that he was in breach of that duty of care when the bus swerved onto the wrong side of the road and collided with another bus causing injury to the applicants. Secondly, as submitted by the applicants, it is open to infer on the limited evidence before the Court that:

(1)    the applicants contracted with the second respondent through its agent, P&O Cruises, to provide the Shore Tour;

(2)    while the second respondent engaged the third respondent as an independent bus driver, it was under a duty of care and/or implied contractual duty to use reasonable care and skill in rendering the provision of the Shore Tour, including in taking steps to ensure that the bus driver was of reasonable competence and experience (see by analogy Wong Mee Wan v Kwan Kin Travel Services Ltd [1995] 4 All ER 745 at 754; [1996] 1 WLR 38 (Privy Council on appeal from the Court of Appeal of Hong Kong) (Wong Mee Wan) at 46);

(3)    it was foreseeable that if this duty of care and/or implied contractual duty was not carried out to a reasonable standard, passengers including the applicants may not be transported to and from the village in a safe manner and that an accident may ensue causing the applicants to sustain personal injury, loss and damage;

(4)    further or in the alternative, in undertaking to provide and not merely arrange the Shore Tour, the second respondent was under an implied contractual duty/duty of care to provide the Shore Tour with reasonable skill and care notwithstanding that transportation to and from the village was rendered by an independent contractor (see by analogy Au Ka Ying v Guangdong (HK) Tours Co Ltd [2003] HCPI 440/2002 (Court of First Instance)); and

(5)    the second respondent breached its duty of care and/or implied contractual duty in failing to ensure that a driver of reasonable competence and experience was engaged and/or failing to undertake the Shore Tour with reasonable care.

71    I also note that, while the terms of the Tour Operator Agreement between P&O Cruises and the second respondent do not of their own force apply to any contract between the second respondent and the applicants, they indicate that the burden which such an implied contractual term or duty of care would impose upon the second respondent would not be unreasonable and that it was envisaged by the second respondent that it would owe such duties to the applicants and other passengers undertaking its tours (see by analogy Wong Mee Wan at 47). In particular, it will be recalled that under the Tour Operator Agreement, the second respondent agreed to ensure that its employees and subcontractors would exercise reasonable care for passengers on their tours, that it retained control and responsibility for all aspects of tour excursions, and that it agreed to provide appropriate insurance cover or ensure appropriate insurance cover was in place, as indeed it appears to have done (see above at [25]).

5.6    Should the Court decline to grant leave to serve outside the jurisdiction in the exercise of discretion?

72    Finally, a Court may, in the exercise of its discretion, decline to grant leave to serve a proceeding out of the jurisdiction if the Court is of the view that the proceeding is liable to be stayed: Jasmin Solar Pty Ltd v Trina Solar Australia Pty Ltd [2015] FCA 1453; (2015) 331 ALR 108 at [66]–[67] (Edelman J) and the authorities there cited. As Edelman J explained at [66], this residual discretion exists “because rule 10.43(2) speaks of a party who “may apply to the Court for leave to serve an originating application on a person in a foreign country …””.

73    A proceeding may be stayed on one of several grounds. In Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 (Voth), Mason CJ, Deane, Dawson and Gaudron JJ observed (at 564) that where an application is brought to set aside orders granting leave to serve a proceeding outside the jurisdiction, the onus remains on the plaintiff to satisfy the court that the case is one which falls within the relevant category and “that the proceedings would not be subsequently stayed as an abuse of process on forum non conveniens grounds or for some other reason”. The majority explained at 564 that:

Otherwise, the ex parte order for service outside the jurisdiction, if onus of proof were to prove decisive, would confer an enduring advantage upon a plaintiff notwithstanding that the expanded evidence on a contested application to set aside service indicated that the applicant had not been entitled to that ex parte order.

74    Justice Rares in Suzlon Energy Ltd v Bangad (No 3) [2012] FCA 123 summarised the relevant principles that emerge from the majority reasons in Voth at 538 (with which Brennan J agreed at 572) as follows (at [52]):

1.    An Australian court must exercise jurisdiction that is conferred on it, except where it is established to be a clearly inappropriate forum ([Voth] 171 CLR at 559).

2.    In cases where the Court has a discretion to grant leave to serve outside the jurisdiction, it is relevant to consider the appropriateness of the forum in exercising that discretion ([Voth] 171 CLR at 560).

3.    The applicant for either that leave, or confirmation of service effected… must satisfy the Court positively that the proceedings would not, or ought not, be stayed as having been brought in a clearly inappropriate forum or as being an abuse of process ([Voth] 171 CLR at 564).

4.    The power to stay (or refuse leave to serve outside the jurisdiction), based on the Court being a clearly inappropriate forum is discretionary, and involves a subjective balancing process, in which various factors and matters of impression, in all the circumstances, are weighed as had been explained by Deane J in Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 247-248 (whose judgment was substantially approved in Voth 171 CLR at 564).

5.    Ordinarily, the local court will not be a clearly inappropriate forum if there is no foreign tribunal that has jurisdiction over the respondent (here the banks) and would entertain the particular proceedings that the applicant wishes to bring (Oceanic 165 CLR at 248). However, where there is no real connection between the subject matter of, or parties to, the litigation, the local court may be clearly inappropriate if the law of the place where the alleged wrong occurred did not allow proceedings to be brought for its redress (e.g. in a jurisdiction where a traffic accident occurred and that had an exclusive statutory compensation scheme, a suit brought in this jurisdiction would be in a clearly inappropriate forum) (Voth 171 CLR 558-559).

6.    The rationale for the exercise of the power to stay is the avoidance of injustice between parties in the particular case (Voth 171 CLR at 554).

75    His Honour further explained at [53] that “a court is not an inappropriate forum merely because another is more appropriate” (citing Zhang at [24] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ)) and further at [54] that:

The nature and degree of connection between the proceedings and the forum are fundamental factors in assessing whether the forum is clearly inappropriate: cf McGregor v Potts (2005) 68 NSWLR 109 at 120 [47] per Brereton J; PCH Offshore Pty Ltd v Dunn (No 2) (2010) 273 ALR 167 at 184 [120], 188 [150] per Siopis J.

76    I am satisfied that Australia is “not an inconvenient forum” given that the applicants are present in Australia, the first respondent has a registered office in NSW, the applicants continue to suffer loss and damage in Australia, the medical experts on which the applicants rely are likely to be located in Australia, and the law governing the agreement between the first and second respondents would appear to be NSW law.

5.7    Conclusion on service abroad

77    It follows for the reasons set out above, that an order for service on Adventures in Paradise outside the jurisdiction in accordance with the law of Vanuatu should be made under r 10.43 of the FCR, subject to compliance by the applicants with my orders for correcting the name of the second respondent on the originating application and statement of claim in each proceeding. An order should also be made for the reasons which I have given for service on the third respondent outside the jurisdiction in accordance with the law of Vanuatu.

5.8    Substituted service

78    Rule 10.49 of the FCR makes provision for substituted service as follows:

If service was not successful on a person in a foreign country, in accordance with a convention, the Hague Convention or the law of a foreign country, a party may apply to the Court without notice for an order:

(a)    substituting another method of service; or

(b)    specifying that, instead of being served, certain steps be taken to bring the document to the attention of the person; or

(c)      specifying that the document is taken to have been served:

(i)    on the happening of a specified event; or

(ii)    at the end of a specified time.

79    No order for substituted service should be considered unless (as here) leave has been obtained to serve proceedings outside the jurisdiction pursuant to Ch 2, Pt 10, Div 10.4 of the FCR (Federal Commissioner of Taxation v Ma [1999] FCA 1093; (1999) 92 FCR 569; Laurie v Carroll (1958) 98 CLR 310 at 329 (Dixon CJ, Williams and Webb JJ)).

80    Rule 5.2 of the CPR Vanuatu provides that a claim and response form must be served on the defendant personally unless rule 5.9 dealing with substituted service applies or the Court orders that the claim may be served in another way. Personal service is relevantly defined in rule 5.8 as follows:

(1)    A document is served personally on an individual:

(a)    by giving a copy of it to the individual; or

(b)    if the individual does not accept the document, by putting it down in the person’s presence and telling the person what it is.

(2)    A document is served personally on a corporation:

(a)    by giving a copy of the document to an officer of the corporation; or

(b)    by leaving a copy of the document at the registered office of the corporation; or

(c)    if the corporation does not have a registered office in Vanuatu, by leaving a copy of the document at the principal place of business, or principal office, of the corporation in Vanuatu.

…

81    However, rule 5.9 of the CPR Vanuatu provides that:

(1)    If a party is unable to serve a document personally, the party may apply to the court for an order that the document be served in another way (called “substituted service”).

(2)    The court may order that the document be served:

(a) by serving it on a chief or a minister of the church who lives in the area where it is believed the person named in the document is living; or

(b) by putting a notice in a newspaper circulating in the area where the person lives; or

(c) by arranging for an announcement about the document to be broadcast on the local radio; or

(d) in any other way that the court is satisfied will ensure that the person to be served knows about the document and its contents.

82    I accept the evidence of Ms Kaurin and Ms Yousef which I have earlier summarised as to the unsuccessful attempts made to effect service personally on Adventures in Paradise. In the circumstances, I am satisfied that this is a case where a party has been unable to personally serve a document so as to engage rule 5.9 of the CPR Vanuatu concerning substituted service. I also agree with the applicants’ submission that the most appropriate form of substituted service would be by making an order for substituted service upon Mr Fleming, as Adventure in Paradise’s solicitor, pursuant to rule 5.9(2)(d). In this regard, Mr Fleming has corresponded with the applicants’ solicitors in these proceedings on behalf of the second respondent and appeared at the hearing before the Supreme Court of Vanuatu as Adventure in Paradise’s legal representative. In circumstances where I may not have up-to-date information about the status of the liquidation of Adventures in Paradise, it is preferable not to make an order for substituted service on the liquidator.

6.    CONCLUSION

83    For the reasons set out above, orders should be made in each matter to correct the name of the second respondent to “Adventures in Paradise Limited (5559) (in liquidation)” in the originating application and the statement of claim. Leave should also be granted:

(1)    to serve the corrected originating application and statement of claim in each of the proceedings upon Adventures in Paradise and the third respondent in Vanuatu; and

(2)    to effect service of these documents on the solicitor for Adventures in Paradise, Mr Fleming of Pacific Partners, and on the third respondent personally in accordance with the law of Vanuatu.

Associate:

Dated:    22 December 2021