Agnish Pty Limited v Folio Invest Pty Limited

[2018] FCA 1992

FEDERAL COURT OF AUSTRALIA

Agnish Pty Limited v Folio Invest Pty Limited [2018] FCA 1992

File number:

NSD 1006 of 2018

Judge:

GRIFFITHS J

Date of judgment:

11 December 2018

Catchwords:

PRACTICE AND PROCEDURE – leave to serve outside the jurisdiction – whether requirements of r 10.43 satisfied – whether Court should exercise its discretion to grant leave

Legislation:

Australian Consumer Law, s 243(e)

Australian Securities and Investments Commission Act 2001 (Cth), s 12GF(1)

Corporations Act 2001 (Cth), s 1041I

Federal Court Rules 2011 (Cth), rr 10.42, 10.43

Cases cited:

Perdaman Chemicals & Fertilisers v Griffin Coal Mining Company Pty Ltd [2011] FCA 1425

Date of hearing:

11 December 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Regulator and Consumer Protection

Category:

Catchwords

Number of paragraphs:

12

Counsel for the Applicant:

Mr J R Anderson

Solicitor for the Applicant:

Lazarus Legal

Counsel for the Respondents:

The Respondents did not appear

ORDERS

NSD 1006 of 2018

BETWEEN:

AGNISH PTY LIMITED (ACN 082 620 559)

Applicant

AND:

FOLIO INVEST PTY LIMITED (ACN 150 171 252)

First Respondent

FOLIO PROPERTY PTY LIMITED (ACN 144 632 413)

Second Respondent

BRADLEY CLIVE JAMES BILBIE

Third Respondent

JUDGE:	GRIFFITHS J
DATE OF ORDER:	11 DECEMBER 2018

THE COURT ORDERS THAT:

1.Leave be granted to the applicant to serve on the third respondent the originating application and statement of claim dated 12 June 2018, the amended interlocutory application dated 21 August 2018 and these Orders, by way of personal service by a private agent in Sierra Leone and in accordance with the laws of the Republic of Sierra Leone. 

2.The time fixed for the purpose of filing a notice of address for service by the third respondent be 21 days from the date of service of the documents referred to in Order 1. 

3.The costs of the application be the applicant’s costs in the cause. 

4.The parties have liberty to apply on three days’ notice. 

THE COURT NOTES THAT

1.The proceedings are currently listed for a further case management hearing on 5 February 2019 at 9:30 am AEDT (Sydney time).

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1. By an amended interlocutory application dated 21 August 2018, the applicant seeks leave under r 10.43(2) of the Federal Court Rules 2011 (Cth) (2011 FCRs) to serve the third respondent with various documents in the Republic of Sierra Leone in accordance with the laws of the Republic of Sierra Leone. 

2. It might be noted that in late October 2018 both the first and second respondents filed defences to the statement of claim.  It was stated in those defences that they were prepared by the third respondent, who also provided an email address.  It will, of course, be necessary in due course for the first and second respondents to seek and obtain the Court’s leave if they wish to be represented by a person other than a qualified legal practitioner. 

3. The applicant relies upon four affidavits in support of its amended interlocutory application.  Two of those affidavits are affirmed by its instructing solicitor, Mark Lazarus, and are dated 21 August 2018 and 10 December 2018 respectively.  The third and fourth affidavits are sworn by another instructing solicitor of the applicant, Barry Neil Lazarus, and are dated 6 August 2018 and 27 September 2018 respectively. 

4. Exhibited to the fourth affidavit is an expert opinion of a Sierra Leone law firm called Renner-Thomas Associates, who are located in Freetown, Sierra Leone.  That expert evidence describes the laws governing the service of foreign court processes in Sierra Leone.  In substance, the opinion is that Order 10 of the High Court Rules of Sierra Leone Constitution Instrument No 25 of 2007 applies to the service of court processes in Sierra Leone generally.  Under the High Court Rules, service of documents such as pleadings may be made inter alia by either a solicitor of the party or a solicitor acting as an agent of the first solicitor.  It further provides that an originating process is to be served personally by delivering to the person to be served a copy of the document duly certified by the Master as being a true copy of the original process filed, without exhibiting the original of the document.  The expert opinion also states, somewhat ambiguously, that the Rules appear to contemplate a pending action in Sierra Leone.  However, the conclusion of the expert opinion is as follows (emphasis in original):

   It is our considered view that service of foreign judicial proceedings is permissible in Sierra Leone.  It is certainly not prohibited.  This process would however be governed by the laws of the country from which the said process emanates…

5. The applicant proposes to effect service on the third respondent by personal service by a private agent in Sierra Leone. 

6. In the second of Barry Lazarus’ affidavits, it is stated that the Commonwealth Attorney-General’s department in Australia has advised that Australian judicial process may be served in Sierra Leone either by service through diplomatic channels or by private agent, which goes some way to overcoming the ambiguity in the expert opinion. 

7. In addition to the procedural requirements specified in r 10.43(3), a party seeking leave must satisfy the Court of the following matters pursuant to r 10.43(4):

   (a)the Court has jurisdiction in the proceedings;

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

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

8. The proceeding which was commenced in this Court on 12 June 2018 seeks relief against the respondents pursuant to s 243(e) of the Australian Consumer Law, or s 12GF(1) of the Australian Securities and Investments Commission Act 2001 (Cth) or s 1041I of the Corporations Act 2001 (Cth). In brief, the applicant alleges that the respondents engaged in misleading or deceptive conduct in making representations to the applicant concerning investment in a real property development located at 92 Boyd Street, Austral. The first and second respondents are companies which are incorporated in Australia. The third respondent, Mr Bilbie, is a director of those companies. It is believed he is currently residing in Sierra Leone (this is based in part on what Mr Bilbie said in an email dated 6 August 2018 in which he stated that he lived in Africa). The applicant pleads that, based on the representations made to it by the respondents, it invested $500,000 as advised by the respondents and has received no return which it says is in breach of cl 5.2 of a loan agreement dated 9 August 2015.

9. I am satisfied that the Court has jurisdiction in the proceeding, that the proceeding is of a kind mentioned in r 10.42 (see items 12 and 13 thereof and see Perdaman Chemicals & Fertilisers v Griffin Coal Mining Company Pty Ltd [2011] FCA 1425 (Perdaman)), and that the applicant has a prima facie case for all or any of the relief claimed in the originating application.  It is well established that the assessment of whether or not there is a prima facie case may be conducted on the basis that, on the material before the Court, inferences are open which, if translated into findings of fact, would support the claim made (see Perdaman at [14]).

10. I acknowledge that there is a residual discretion to refuse leave to serve in a foreign country even where the conditions in r 10.43(4) are satisfied. I see no reason why that discretion should be exercised unfavourably to the applicant in the circumstances of this case.

11. Guidance on the operation of r 10.43 is provided by the Court’s Overseas Service and Evidence Practice Note (GPN-OSE), which is dated 25 October 2016. Paragraph 2.4 states that the supporting material should include information obtained from the Australian Attorney-General’s Department in relation to the appropriate method of transmitting documents for service in that country, including whether the documents may be transmitted for service by a private agent within that country. I am satisfied that this requirement is met here in the body of Barry Lazarus’ affidavit dated 27 September 2018.

    Conclusion

12. For these reasons, the Court will grant leave to serve on the third respondent the originating application and statement of claim dated 12 June 2018, the amended interlocutory application for leave to serve outside of the jurisdiction and a copy of these Orders of the Court by way of personal service by a private agent in Sierra Leone and in accordance with the laws of the Republic of Sierra Leone. 

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.

Associate:

Dated:        11 December 2018