Ashton v Pope

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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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Details
Case
[2022] FCA 1425
Decision Date

CaseChat Overview and Summary

The applicant, Ashton, sought leave to serve an originating application on the respondent, Pope, who resides in the United States of America. The application pertains to alleged breaches of directors' duties under the Corporations Act 2001 (Cth) and is connected to ongoing proceedings in the Supreme Court of Western Australia. The primary legal issue before the court was whether Ashton had established a prima facie case concerning a cause of action or remedy, sufficient to warrant the grant of leave to serve the application overseas. This was a critical consideration in determining whether the application could proceed under the Hague Convention for the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.

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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