Federal Court of Australia

Fisher v Isuzu Motors Ltd [2024] FCA 1109

ORDERS

THE COURT NOTES THAT:

1.    These orders are made on an ex parte basis. The Respondent is yet to file appearance.

2.    On 9 September 2024, the Applicants made a request for service of the Originating Application, Statement of Claim and other related documents on the Respondent in accordance with rule 10.64 of the Federal Court Rules 2011 (Cth) (Federal Court Rules) to serve those documents under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.

3.    In addition, the Applicants have taken other steps to bring the Originating Application and Statement of Claim to the attention of the Respondent, including by exchanging correspondence with the Respondent’s legal representatives, Nagashima Ohno & Tsunematsu.

4.    By letter dated 6 September 2024, Nagashima Ohno & Tsunematsu confirmed receipt of correspondence from the Applicants’ legal representatives, including:

(a)    a letter from the Applicants’ legal representative to the registered office address of the Respondent dated 20 August 2024 (posted 21 August 2024) enclosing the Originating Application and the Statement of Claim; and

(b)    an email from the Applicants’ legal representative to the General Counsel of the Respondent’s Australian subsidiary, Isuzu Australia Limited (ACN 006 962 572) (IAL), Ms Kathryn Ball, dated 14 August 2024, attaching the Originating Application and the Statement of Claim.

THE COURT ORDERS THAT:

1.    Pursuant to rule 10.23 or rule 10.48 of the Federal Court Rules, the Originating Application and Statement of Claim filed 14 August 2024 in this proceeding are taken to have been served on the Respondent by the Applicants having sent a copy of those documents to the Respondent:

(a)    by email to Ms Ball of IAL on 14 August 2024; and

(b)    by post to the below registered office address of the Respondent in Japan on 21 August 2024:

(i)    Yokohama Gate Tower 2-5, Takashima 1- chome, Nishi-ku, Yokohama-Shi, Kanagawa-ken, 220-8720, Japan; and

(ii)    1-Chome 2-5, Takashima, Yokohama Nishi-Ku, Kanagawa, 220-0011, Japan.

2.    Pursuant to rule 10.44 of the Federal Court Rules, the Applicants have leave to serve a copy of these orders on the Respondent outside Australia.

3.    Pursuant to rule 10.24 of the Federal Court Rules, the Applicants have leave to effect service of these orders on the Respondent by transmitting a copy to Mr Shunji Matsuda of Nagashima Ohno & Tsunematsu at shunji_matsuda@noandt.com.

4.    Pursuant to rule 10.43C of the Federal Court Rules, the Respondent is to file a notice of address for service on or before the 2 October 2024.

5.    The matter be listed for a case management hearing at 9.30am on 14 October 2024.

6.    Costs are reserved.

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

REASONS FOR JUDGMENT

(Revised from transcript)

WIGNEY J

1    The applicants in this matter have commenced representative proceedings against Isuzu Motors Limited, a Japanese public company limited by shares. In short summary, the applicants allege that Isuzu misled them and other group members into believing that vehicles manufactured by Isuzu complied with the applicable emissions standards. They claim that Isuzu thereby contravened various provisions of the Australian Consumer Law, being schedule 2 to the Competition and Consumer Act 2010 (Cth), and seek, amongst other things, damages and compensation.

2    The interlocutory issue that is presently before the court concerns the service of the originating application and statement of claim on Isuzu. The applicants have not yet been able to serve Isuzu. That is largely because, as has already been noted, Isuzu is a Japanese company and its registered office is in Japan. While it has a wholly-owned Australian subsidiary, that company has thus far declined to confirm that it has instructions to accept service on behalf of its parent company.

3    The applicants, through their solicitors, have issued a request to a registrar of this Court for service of the originating application and statement of claim in Japan in accordance with rule 10.64 of the Federal Court Rules 2011 (Cth), and the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Convention). The applicants’ solicitors have, however, been advised by the Ministry of Foreign Affairs in Japan that service in Japan pursuant to the Hague Convention may take up to four months, and possibly longer. The applicants have also adduced evidence which indicates that the Attorney General's Department has published guidance on its website titled “Service of Australian civil legal documents overseas”, which states that the average processing timeframe for requests for service via diplomatic channels in a foreign country takes approximately four to six months.

4    The applicants have taken various other steps to bring the originating application and statement of claim to Isuzu’s attention. The applicants’ solicitors have sent a letter enclosing the originating application and statement of claim to Isuzu’s registered office in Japan, and have also sent the documents by email to Isuzu’s Australian subsidiary. There is also evidence that the originating application and statement of claim have been brought to the attention of Isuzu and its lawyers in Japan. Indeed, the applicants have received a letter from Isuzu’s Japanese lawyers confirming that to be the case.

5    Given the anticipated delay in formally effecting service in accordance with the Hauge Convention, the applicants have applied to the Court for, amongst other things, orders pursuant to either rule 10.23 or rule 10.48 of the Federal Court Rules that the originating application and statement of claim be taken to have been served by virtue of the steps that have been taken thus far, specifically by virtue of the email sent to Isuzu’s Australian subsidiary and the letter sent to Isuzu’s registered office in Japan.

6    Rule 10.23 of the Federal Court Rules provides as follows:

10.23  Deemed service

 A party may apply to the Court, without notice, for an order that a document is taken to have been served on a person on a date mentioned in the order if:

 (a) it is not practicable to serve a document on the person in a way required by these Rules; and

 (b) the party provides evidence that the document has been brought to the attention of the person to be served.

Note: Without notice is defined in the Dictionary.

7    Rule 10.48 similarly provides as follows:

10.48  Deemed service

 A party may apply to the Court without notice for an order that a document is taken to have been served on a person on the day mentioned in the order, if:

 (a) it is not practicable to serve the document on the person outside Australia in accordance with a convention, the Hague Convention or the law of the country in which the person resides; and

 (b) the party provides evidence that the document has been brought to the attention of the person.

Note: Without notice is defined in the Dictionary.

8    As can be seen, both rules effectively require an applicant for deemed service to establish two things: first, that it is “not practicable” to serve the document on a person in a way required by either the Rules, in the case of rule 10.23, or the Hague Convention, in the case of rule 10.48; and second, that there is evidence that the document has been brought to the attention of the person to be served.

9    As I have already noted, the applicants have adduced evidence which establishes that the originating application and statement of claim have been brought to Isuzu’s attention. The remaining issue, therefore, is whether the applicants have demonstrated that service on Isuzu in Japan, relevantly, in accordance with either the Rules or the Hague Convention, is not practicable.

10    The applicants essentially contend that service in Japan pursuant to the Hague Convention is not practicable in the circumstances of this case because it would take somewhere between four and six months.

11    The words or expression “not practicable” in rules 10.23 and 10.48 have been considered in several cases. I do not propose to provide any detailed analysis of what has been said in those cases. Suffice it to say, it is well accepted that “not practicable” in this context does not mean impossible. Rather, the meaning of “not practicable” includes concepts of feasibility and capability, and must be determined according to the circumstances of the particular proceedings, including the relief sought, and the requirement that litigation be progressed quickly and efficiently: see Australian Securities and Investments Commission v China Environment Group Ltd [2013] FCA 286 at [11] – [12], bCode Proprietary Limited (in liq) v Holford [2018] FCA 798 at [10] – [12], and Sanum Investments Limited v ST Group Co., Ltd (No. 2) [2019] FCA 1047 at [149] – [150]. The requirement that litigation be progressed as quickly, inexpensively and efficiently as possible is enshrined in section 37M of the Federal Court of Australia Act 1976 (Cth).

12    Importantly, there is also authority to the effect that service overseas pursuant to the Rules may be considered to be “impractical” (being the word used in the cognate rule in the previous Rules) if the circumstances of the case suggest that service should be effected as soon as possible, but service via diplomatic channels, as required by the Rules, could take a considerable period of time. In Mercator Property Consultants Pty Ltd v Christmas Island Resort Pty Ltd (Nicholson J, 14 July 1998, unreported), the fact that service on a corporation in Singapore via diplomatic channels could take approximately four to six months was considered sufficient to make that mode of service impractical.

13    I am satisfied, having regard to the particular facts and circumstances of this case, that service of the originating application and statement of claim on Isuzu in Japan pursuant to the Hague Convention is “not practicable”. That is because service by that means will take up to four to six months. That is neither efficient nor expeditious. In my view, requiring service pursuant to the Hague Convention to be effected in the particular circumstances of this case would be contrary to the requirement in section 37M of the Federal Court of Australia Act, particularly in circumstances where it is abundantly clear that the originating application and statement of claim have already been brought to the attention of Isuzu. Delaying the proceeding by four to six months while the documents work their way through the diplomatic channels as required by the Hague Convention would, in my view, not be practicable.

14    I will accordingly make the orders sought by the applicants in all circumstances, including the notes in those orders.

15    I should perhaps finally note that the applicants have indicated that they propose, for more abundant caution, to ensure that the originating application and statement of claim are still served pursuant to the Hague Convention, particularly as that process has already been initiated.

Associate:

Dated:    25 September 2024