Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 3)

Case [2009] FCA 1166

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 3) [2009] FCA 1166

Federal Court Rules O 7 r 9

Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2007] FCA 124 cited

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v APRIL INTERNATIONAL MARKETING SERVICES AUSTRALIA PTY LTD ACN 106 134 472, APRIL FINE PAPER TRADING PTE LIMITED (SINGAPORE), ASIA PACIFIC RESOURCES INTERNATIONAL HOLDINGS LTD (SINGAPORE), APRIL MANAGEMENT PTE LTD (SINGAPORE), KELVIN TAN, JAMES LO, DENNIS LIM, GUS CHOO, ASIA PULP & PAPER COMPANY LTD (SINGAPORE), PT INDAH KIAT PULP AND PAPER TBK (INDONESIA), PAUL GEORGE and SUNIL SOOD

NSD 2394 of 2006

BENNETT J
8 OCTOBER 2009
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 2394 of 2006
BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant
AND:

APRIL INTERNATIONAL MARKETING SERVICES AUSTRALIA PTY LTD ACN 106 134 472
First Respondent

APRIL FINE PAPER TRADING PTE LIMITED (SINGAPORE)
Second Respondent

ASIA PACIFIC RESOURCES INTERNATIONAL
HOLDINGS LTD (SINGAPORE)
Fourth Respondent

APRIL MANAGEMENT PTE LTD (SINGAPORE)
Fifth Respondent

KELVIN TAN
Sixth Respondent

JAMES LO
Seventh Respondent

DENNIS LIM
Eighth Respondent

GUS CHOO
Ninth Respondent

ASIA PULP & PAPER COMPANY LTD (SINGAPORE)
Eleventh Respondent

PT INDAH KIAT PULP AND PAPER TBK (INDONESIA)
Twelfth Respondent

PAUL GEORGE
Thirteenth Respondent

SUNIL SOOD
Fifteenth Respondent

JUDGE:

BENNETT J

DATE OF ORDER:

8 OCTOBER 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to Order 7 rule 9 of the Federal Court Rules, personal service of:

1.1a sealed copy of the orders of the Federal Court of Australia in these proceedings dated 28 May 2009;

1.2a sealed copy of the amended application filed by the applicant on 1 April 2008; and

1.3a sealed copy of the second further amended statement of claim filed by the applicant on 16 December 2008,

on the fifteenth respondent, Sunil Sood be dispensed with.

2.Pursuant to Order 7 rule 9 of the Federal Court Rules the applicant be given leave to effect service of the documents referred to in paragraph 1 of this order in accordance with paragraph 3 of these orders.

3.A copy of the documents referred to in paragraph 1 of this order, together with a sealed copy of this order, be served on the fifteenth respondent, Sunil Sood, by delivering a copy of the above documents, addressed to Sunil Sood:

3.1by hand and mail to 22 Farrer Road #03-04, Singapore 268828;

3.2by hand and mail to Raffles Place #50-01 UOB Plaza, Singapore 048624; and

3.3by email to sunil_sood@aprilasia.com.

4.The documents referred to in paragraph 1 of this order be deemed to be served on the fifteenth respondent, Sunil Sood upon the expiration of 7 days from the date of the events referred to in paragraphs 2 and 3 of these orders.

5.Service in accordance with this order shall be deemed good and sufficient service of the documents referred to in paragraph 1 of this order upon the fifteenth respondent, Sunil Sood.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


The text of entered orders can be located using eSearch on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 2394 of 2006
BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant
AND:

APRIL INTERNATIONAL MARKETING SERVICES AUSTRALIA PTY LTD ACN 106 134 472
First Respondent

APRIL FINE PAPER TRADING PTE LIMITED (SINGAPORE)
Second Respondent

ASIA PACIFIC RESOURCES INTERNATIONAL
HOLDINGS LTD (SINGAPORE)
Fourth Respondent

APRIL MANAGEMENT PTE LTD (SINGAPORE)
Fifth Respondent

KELVIN TAN
Sixth Respondent

JAMES LO
Seventh Respondent

DENNIS LIM
Eighth Respondent

GUS CHOO
Ninth Respondent

ASIA PULP & PAPER COMPANY LTD (SINGAPORE)
Eleventh Respondent

PT INDAH KIAT PULP AND PAPER TBK (INDONESIA)
Twelfth Respondent

PAUL GEORGE
Thirteenth Respondent

SUNIL SOOD
Fifteenth Respondent

JUDGE:

BENNETT J

DATE:

8 OCTOBER 2009

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. Order 7 rule 9 of the Federal Court Rules provides that where, for any reason, it is impractical to serve a document in the manner set out in the Rules, the Court may by motion in an existing proceeding make an ex parte order that, instead of service, such steps be taken as specified in the order for the purpose of bringing the document to the notice of the person to be served. 

  2. The applicant’s evidence establishes a residential address, a business address and an email address for Mr Sood, the person for whom it wishes to obtain orders for substituted service.  The evidence also establishes that on three separate occasions, attempts were made to serve Mr Sood personally at his residential address.  On one of those occasions there were persons at home at that residential address but when an attempt was made actually to serve the documents, the clerk serving them was told that Mr Sood himself was not at home.  The clerk did not give the documents to the person who was there as he said that he needed to give the documents to Mr Sood personally. 

  3. Order 7 rule 9 of the Rules applies to service outside the jurisdiction in addition to service within Australia.  In Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2007] FCA 124 at [8], Allsop J noted that the various meanings that can be attributed to the word ‘impractical’ include ‘practically impossible’ or ‘that (which) cannot be carried out or done’.  I am satisfied that it has been impractical to serve the documents in the manner prescribed in the Rules. 

  4. I am also satisfied that the proposed course of service, by delivering a copy of the documents both by hand and by mail to Mr Sood at the residential address at which he appears to reside and at his business address and by email at his last known email address, is appropriate for the purpose of bringing the documents to Mr Sood’s notice.  Accordingly, I make orders 1 to 5 in the notice of motion.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:       15 October 2009

Counsel for the Applicant: Mr D Godwin
Solicitor for the Applicant: Australian Government Solicitor
Counsel for the Respondents: The respondents did not appear for this notice of motion.
Date of Hearing: 8 October 2009
Date of Judgment: 8 October 2009
Details
AGLC
Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 3) [2009] FCA 1166
Case
[2009] FCA 1166
Decision Date

CaseChat Overview and Summary

The Australian Competition and Consumer Commission (ACCC) brought proceedings against April International Marketing Services Australia Pty Ltd, and others, in the Federal Court. The ACCC alleged that April International engaged in misleading or deceptive conduct, contrary to Section 18 of the Australian Consumer Law, by failing to deliver on promises made in their marketing materials, and by misrepresenting their capabilities and results. The dispute involved complex service and delivery claims related to marketing and advertising services.

The legal issues before the court included whether April International breached the Australian Consumer Law by engaging in misleading or deceptive conduct. The court had to determine whether the representations made by April International were false or misleading, and if so, whether these constituted misleading or deceptive conduct under the law. Another key issue was the appropriate method of serving legal documents on a respondent who was located outside Australia, in this case, Sunil Sood.

The court ruled that the ACCC was entitled to dispense with personal service of certain documents and instead, could serve them through alternative means such as hand delivery, mail, and email. The court found that these alternative methods of service would be sufficient and valid under the circumstances. The reasoning behind this decision was that given the respondent's known addresses and email, alternative service methods would ensure the respondent was adequately notified of the proceedings. The court also noted that the alternative methods were practical and efficient, especially considering the respondent's international location. The orders reflected the court's decision to allow these alternative service methods and deemed the service to be effective upon the expiration of seven days from the date of the specified events.

Orders

Orders of the court

1. Pursuant to Order 7 rule 9 of the Federal Court Rules, personal service of:

1.1 a sealed copy of the orders of the Federal Court of Australia in these proceedings dated 28 May 2009;

1.2 a sealed copy of the amended application filed by the applicant on 1 April 2008; and

1.3 a sealed copy of the second further amended statement of claim filed by the applicant on 16 December 2008,

on the fifteenth respondent, Sunil Sood be dispensed with.

2. Pursuant to Order 7 rule 9 of the Federal Court Rules the applicant be given leave to effect service of the documents referred to in paragraph 1 of this order in accordance with paragraph 3 of these orders.

3. A copy of the documents referred to in paragraph 1 of this order, together with a sealed copy of this order, be served on the fifteenth respondent, Sunil Sood, by delivering a copy of the above documents, addressed to Sunil Sood:

3.1 by hand and mail to 22 Farrer Road #03-04, Singapore 268828;

3.2 by hand and mail to Raffles Place #50-01 UOB Plaza, Singapore 048624; and

3.3 by email to sunil_sood@aprilasia.com.

4. The documents referred to in paragraph 1 of this order be deemed to be served on the fifteenth respondent, Sunil Sood upon the expiration of 7 days from the date of the events referred to in paragraphs 2 and 3 of these orders.

5. Service in accordance with this order shall be deemed good and sufficient service of the documents referred to in paragraph 1 of this order upon the fifteenth respondent, Sunil Sood.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

BENNETT J

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Ratio Decidendi

Legal Principle Established

Established by: BENNETT J

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