FEDERAL COURT OF AUSTRALIA
Ashton v Pope [2022] FCA 1425
File number: WAD 232 of 2022 Judgment of: BANKS-SMITH J Date of judgment: 28 November 2022 Catchwords: PRACTICE AND PROCEDURE - service - ex parte interlocutory application for leave to serve originating application overseas - where respondent resident in the United States of America - where service to be implemented under Hague Convention - where causes of action include breach of directors' duties under the Corporations Act 2001 (Cth) - whether applicant established prima facie case in relation to a cause of action or remedy - where related proceedings in Supreme Court of Western Australia - leave granted Legislation: Corporations Act 2001 (Cth) ss 79, 180, 181, 182, 183, 1317E, 1317H, 1337B
Federal Court of Australia Act 1976 (Cth) ss 5, 21, 23
Federal Court Rules 2011 (Cth ) rr 10.42 (items 1, 13, 15 and 20), 10.43, 10.64
Cases cited: Advanced Energy Resources Pty Ltd v Bremer Lloyd Marine Logistics GmbH & Co KG [2017] FCA 1487
Fencott v Muller (O'Connors Winebar case) (1983) 152 CLR 570
Ho v Akai Pty Limited (in liq) [2006] FCAFC 159; (2006) 247 FCR 205
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116; (2006) 154 FCR 425
Israel Discount Bank Limited v ACN 078 272 867 Pty Ltd (in liq)(formerly Advance Finances Pty Ltd) [2019] FCAFC 90
Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457
National Australia Bank Limited v Nautilus Insurance Pte Ltd (No 2) [2019] FCA 1543
Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511
Westpac Banking Corporation v Paterson [1999] FCA 1609; (1999) 95 FCR 59
Division: General Division Registry: Western Australia National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 33 Date of hearing: 28 November 2022 Counsel for the Applicant: Mr DM Benson Solicitor for the Applicant: Clayton Utz Counsel for the Respondents: Mr BS Shaw Solicitor for the Respondents: Cowen Schwarz Marschke Lawyers ORDERS
WAD 232 of 2022 BETWEEN: SIMON JOHN ASHTON
Applicant
AND: JOHN MICHAEL POPE
First Respondent
GREGORY LEO QUINN
Second Respondent
ORDER MADE BY:
BANKS-SMITH J
DATE OF ORDER:
28 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The applicant has leave pursuant to r 10.43 of the Federal Court Rules 2011 (Cth) to serve the following documents on the first respondent in the United States of America:
(a)the Originating Application, the Concise Statement and the Genuine Steps Statement filed on 28 October 2022;
(b)the interlocutory application filed 10 November 2022 and the supporting affidavits of Tessa Lauren Trend affirmed 10 November 2022 and 23 November 2022; and
(c)these orders.
2.The applicant shall seek to effect service of the documents referred to in paragraph 1 above in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965.
3.The costs of this application be reserved.
Note: Entry of orders…
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- Case
- [2022] FCA 1425
- Decision Date
CaseChat Overview and Summary
The court assessed the application under rule 10.43 of the Federal Court Rules 2011 (Cth), focusing on the criteria for granting leave to serve documents overseas. The court determined that Ashton had demonstrated a sufficient basis for the claims, establishing a prima facie case against Pope. This included evidence of breaches of directors' duties and a clear connection to the ongoing proceedings in Western Australia. The court concluded that the application met the threshold requirements for leave to be granted, thereby permitting service of the originating application and related documents on Pope in the United States.
The court granted leave for the service of the originating application and related documents on Pope, in accordance with the Hague Convention. It instructed Ashton to seek service of these documents through the appropriate channels under the Convention. The court reserved the matter of costs, indicating that this would be addressed at a later stage. This decision allows the litigation to progress, enabling Ashton to pursue the claims against Pope, despite the respondent's residence overseas.
Orders
Orders of the court
1. The applicant has leave pursuant to r 10.43 of the Federal Court Rules 2011 (Cth) to serve the following documents on the first respondent in the United States of America:
(a) the Originating Application, the Concise Statement and the Genuine Steps Statement filed on 28 October 2022;
(b) the interlocutory application filed 10 November 2022 and the supporting affidavits of Tessa Lauren Trend affirmed 10 November 2022 and 23 November 2022; and
(c) these orders.
2. The applicant shall seek to effect service of the documents referred to in paragraph 1 above in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965.
3. The costs of this application be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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