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Bell v Steele

Bell v Steele

Case [2011] FCA 1390 6 December 2011

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FEDERAL COURT OF AUSTRALIA
Bell v Steele [2011] FCA 1390

Citation: Bell v Steele [2011] FCA 1390

Parties: RICHARD KENNETH BELL v TANYA STEELE

File number: QUD 391 of 2011

Judge: COLLIER J

Date of judgment: 6 December 2011

Catchwords: PRACTICE AND PROCEDURE – service of originating application in foreign country – rules 10.42 and 10.43(2), (3), (4) Federal Court Rules – Article 10(a) Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Convention”) – prima facie case

Words and phrases: “in accordance with”

Legislation:
Copyright Act 1968 (Cth) ss 84, s 22(4)(b), 131C, 202(1)
Federal Court of Australia Act 1976 (Cth) s 19
Federal Court Rules rr 10.42, 10.43

Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters Art 10(a), entered into force on 10 November 1965

Cases cited: Ackermann v Levine 788 F2d 830, 839 (2d Cir 1988) cited
Australian Competition and Consumer Commission v Yellow Page Marketing BV [2010] FCA 1218 cited
Boschetti v Crean (1993) 41 FCR 536 cited
Cantara v Peeler 267 AD 2d 997, 701 NYS 2d 556 (4th Dept 1999) cited
Commonwealth v Tasmania (1983) 158 CLR 1 cited
Fernandez v Univan Leasing 15 AD 3d 343, 790 NYS 2d 155 (2d Dept 2005) cited
Ho v Akai (in liq) [2006] FCAFC 159 cited
In re Cinar Corp. Securities Litigation 186 FSupp 2d 279 (SDNY 2002) cited

Ozer C, “How Courts in New York View Service of Process Abroad by Mail” 17 Dec 2009 NYLJ

Date of hearing: 6 December 2011

Place: Brisbane

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 25

Solicitor for the Applicant: Mr J Swinson of Mallesons Stephen Jaques

Counsel for the Respondent: The Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 391 of 2011

BETWEEN:
RICHARD KENNETH BELL
Applicant

AND:
TANYA STEELE
Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

6 DECEMBER 2011

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
The Applicant have leave to serve:
1.The Originating Application and Statement of Claim dated 21 October 2011 and filed 24 October 2011;
2.This Interlocutory Application dated 2 December 2011;
3.The Affidavit of John Victor Swinson sworn on 2 December 2011;

by sending the documents by international registered post with return receipt to the address of the Respondent, Tanya Steele, at 552 Saint Marks Avenue, Apartment 8, Brooklyn NY 11238-7434.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 391 of 2011

BETWEEN:
RICHARD KENNETH BELL
Applicant

AND:
TANYA STEELE
Respondent

JUDGE:

COLLIER J

DATE:

6 DECEMBER 2011

PLACE:

BRISBANE

REASONS FOR JUDGMENT

On 24 October 2011 the applicant, Mr Bell, filed an originating application in this Court dated 21 October 2011 wherein he sought declarations and damages against the respondent under the Copyright Act 1968 (Cth) (“the Copyright Act”)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bell v Steele

Details

AGLC: Bell v Steele [2011] FCA 1390
Case: [2011] FCA 1390
Decision Date: 6 December 2011

CaseChat Overview and Summary

In the Federal Court of Australia, Bell brought a proceeding against Steele. The applicant sought leave to serve the originating application and related documents by international registered post to the respondent’s address in New York. The dispute centred around the appropriate method of serving legal documents on a party located in a foreign jurisdiction. The court had to determine whether the application complied with the Federal Court Rules and the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.

The court considered whether the applicant had established a prima facie case for the relief claimed and whether the proposed method of service complied with the relevant legal frameworks. Specifically, the court examined Rules 10.42 and 10.43(2), (3), (4) of the Federal Court Rules, as well as Article 10(a) of the Hague Convention. The applicant argued that the proposed method of service was reasonable and complied with the requirements of both the Federal Court Rules and the Hague Convention.

The court found that the applicant had demonstrated a prima facie case for relief and that the proposed method of service was reasonable under the circumstances. The court concluded that the applicant was entitled to serve the documents by international registered post with return receipt. The court granted the application for leave to serve the documents in the manner proposed by the applicant. The court noted that the entry of the orders would be dealt with in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

The Applicant have leave to serve:

1. The Originating Application and Statement of Claim dated 21 October 2011 and filed 24 October 2011;

2. This Interlocutory Application dated 2 December 2011;

3. The Affidavit of John Victor Swinson sworn on 2 December 2011;

by sending the documents by international registered post with return receipt to the address of the Respondent, Tanya Steele, at 552 Saint Marks Avenue, Apartment 8, Brooklyn NY 11238-7434.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I consider that this material supports a claim that a controversy exists between the parties, warranting the use of the Court’s processes to resolve it. In this respect, the applicant has established a prima facie case for relief claimed in this proceeding.Conclusion In my view the applicant is entitled to the orders sought.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

Bell v Steele [2011] FCA 1390

Most Recent Citation

Apotex Pty Ltd v Les Laboratoires Servier (No 2) [2012] FCA 748

Cases Citing This Decision

CPSU, the Community and Public Sector Union v Australian Broadcasting Corporation T/A ABC [2023] FWCFB 91
Citation 1 (Para 15)

…[12] See, Bell v Steele [2011] FCA 1390 at [15].…
Epic Games, Inc v Google LLC (Service Out of Jurisdiction) [2021] FCA 666
Citation 2 (Para 16)

…n v Power Assets Holdings Ltd (previously known as Hongkong Electric Holdings Ltd) [2013] FCA 708; 96 ATR 51 at [15]-[22] per Gordon J; Bell v Steele [2011] FCA 1390; 198 FCR 291 at [13], [16] per Collier J. I will grant leave to Epic to serve by registered international post. GOOGLE ASIA…
Sydney Criminal Lawyers v Google LLC [2021] FCA 297
Citation 3 (Para 12)

…at [15]-[22]; Deputy Commissioner of Taxation v Cheung Kong Infrastructure Holdings Ltd [2013] FCA 707; (2013) 96 ATR 44 at [15]-[22]; Bell v Steele [2011] FCA 1390; (2011) 198 FCR 291 at [13] and [16]; Ahmed v Al-Hussain Pty Ltd t/as The Cheesecake Shop [2018] FCA 1741 at [17].…
Seven Consulting Pty Ltd v Google LLC [2021] FCA 203
Citation 4 (Para 12)

…at [15]-[22]; Deputy Commissioner of Taxation v Cheung Kong Infrastructure Holdings Ltd [2013] FCA 707; (2013) 96 ATR 44 at [15]-[22]; Bell v Steele [2011] FCA 1390; (2011) 198 FCR 291 at [13] and [16]; Ahmed v Al-Hussain Pty Ltd t/as The Cheesecake Shop [2018] FCA 1741 at [17].…
Australian Information Commissioner v Facebook Inc (No 2) [2020] FCA 1307
Citation 5 (Para 4)

…ated into findings of fact, would support the relief claimed. This test was described by Collier J in Bell v Steele (2011) 198 FCR 291; 94 IPR 502; [2011] FCA 1390 at [21] as a “relatively low” threshold. I would add that an available inference, to be open, should be made on the basis of evidence of facts; an infe…
Kabbabe v Google LLC [2020] FCA 126
Citation 6 (Para 8)

…puty Commissioner of Taxation v Cheung Kong Infrastructure Holdings Ltd [2013] FCA 707; (2013) 96 ATR 44 at [15]-[22] (Gordon J); Bell v Steele [2011] FCA 1390; (2011) 198 FCR 291 at [13] and [16] (Collier J); and Ahmed v Al-Hussain Pty Ltd t/as The Cheesecake Shop [2018] FCA 1741 at [17] (Rares J).…
Porter, the Trustee of the Property of Thanh Huyen Tran, a Bankrupt v Nguyen [2019] FCCA 2798
Citation 7 (Para 1)

…y Commissioner of Taxation v Cheung Kong Infrastructure Holdings Ltd [2013] FCA 707; 96 ATR 44 at [15]-[22] (Gordon J); Bell v Steele [2011] FCA 1390; 198 FCR 521 at [13] and [16] (Collier J). Latvia does not object to service by post under Article 10(a). However, it has made the following declaration: In accordan…
Ahmed v Al-Hussain Pty Ltd t/as The Cheesecake Shop [2018] FCA 1741
Citation 8 (Para 17)

…J); Deputy Commissioner of Taxation v Cheung Kong Infrastructure Holdings Ltd [2013] FCA 707; 96 ATR 44 at [15]-[22] (Gordon J); Bell v Steele [2011] FCA 1390; 198 FCR 521 at [13] and [16] (Collier J).…
Chamberlain Group, Inc v Giant Alarm System Co, Ltd [2017] FCA 1472
Citation 9 (Para 32)

…These observations were adopted by Collier J in Bell v Steele [2011] FCA 1390; (2011) 198 FCR 291 at [21] when considering r 10.43(4)(c).…
Olson v Keefe [2017] FCA 101
Citation 10 (Para 4)

…In relation to the Hague Convention, reliance is placed on the reasoning of Collier J in Bell v Steele [2011] FCA 1390; (2011) 198 FCR 291 at 293-4 [8]-[16], wherein her Honour recognised the distinction between service being permitted in the sense of not being objected to by a signatory State such as the USA, and…
AIA Australia Ltd v Richards [2017] FCA 84
Citation 11

…for signature 15 November 1965. 658 UNTS 163 arts 5, 8, 10. (entered into force 1 November 2010) Cases cited: Bell v Steele [2011] FCA 1390; 198 FCR 291 Deputy Commissioner of Taxation v Cheung Kong Infrastructure Holdings Ltd [2013] FCA 707; 96 ATR 44 Deputy Commissioner of Taxation v Power Assets Holdings L…
Herold v Seally [2017] FCA 42
Citation 12 (Para 11)

…Accordingly, I am satisfied that the requirements of r 10.43(3) are made out; see Bell v Steele [2011] FCA 1390; (2011) 198 FCR 291 at [8] – [13].…
Mainmark Corporation Pty Limited v Resinject Pty Limited (No 2) [2015] FCA 1147
Citation 13 (Para 14)

…ions of Lee J in Century Insurance Limited (in provisional liquidation) v New Zealand Guardian Trust Limited [1996] FCA 376; see also Bell v Steele (2011) 198 FCR 291 at [21].…
Vringo Infrastructure Inc v ZTE (Australia) Pty Ltd (No 4) [2015] FCA 177
Citation 14 (Para 4)

…In Bell v Steele (2011) 198 FCR 291, when considering r 10.43(4)(c), Collier J at [21] adopted the following observations of the Full Court in Ho v Akai Pty Ltd (in liq) (2006) 24 ACLC 1,526: … the prima facie case requirement has to be met at the outset, usually on an ex parte basis, and without the advantage of dis…
Bayer Pharma Aktiengesellschaft v Genentech, Inc [2012] FCA 1467
Citation 15 (Para 7)

…as Gordon J observed in ACCC v Yellow Page Marketing , is not particularly onerous (at [25]). The test was described by Collier J in Bell v Steele (2011) 198 FCR 291 at 295 at [21] as a ‘ relatively low ’ threshold.…
Apotex Pty Ltd v Les Laboratoires Servier (No 2) [2012] FCA 748
Citation 16 (Para 13)

…rences are open which, if translated into findings of fact, would support the relief claimed. This test was described by Collier J in Bell v Steele (2011) 198 FCR 291 at 295 at [21] as a ‘ relatively low ’ threshold. I would add that an available inference, to be open, should be made on the basis of evidence of facts…

See all citing cases →

Cases Cited

Australian Competition and Consumer Commission v Yellow Page Marketing BV [2010] FCA 1218
Citation 1 (Para 12)

…hus “permitted” by the Hague Convention (cf observations of Gordon J in Australian Competition and Consumer Commission v Yellow Page Marketing BV [2010] FCA 1218 at [20]).…
Ho v Akai Pty Ltd (In Liq) [2006] FCAFC 159
Citation 2 (Para 2)

…oses of r 10.43(4)(c), the applicant’s threshold is relatively low. In considering a predecessor to this rule, the Full Court in Ho v Akai (in liq) [2006] FCAFC 159 observed: …the prima facie case requirement has to be met at the outset, usually on an ex parte basis, and without the advantage of discovery and other…
Century Insurance (in provisional liquidation) v New Zealand Guardian Trust [1996] FCA 376
Citation 3 (Para 2)

…02 at 110. Or, to put the matter more prosaically as Lee J did in Century Insurance (in provisional liquidation) v New Zealand Guardian Trust [1996] FCA 376: What the Court must determine is whether the case made out on the material presented shows that a controversy exists between the parties that warrants the u…
Latitude Fisheries Pty Ltd v Minister for Primary Industries and Energy [1992] FCA 623
Citation 4 (Para 14)

…ith” the Hague Convention for the purposes of r 10.43(2). However as the Full Court observed in a very different context in Boschetti v Crean (1993) 41 FCR 536 at [16], the expression “in accordance with” connotes a substantial measure of consistency, but beyond that their Honours did not consider it helpful to subs…
Secretary, Department of Social Security v Hodgson [1992] FCA 510
Citation 5 (Para 2)

…ducts Inc [1991] FCA 70; (1991) 28 FCR 387 at 390. It “should not call for a substantial inquiry”: WSGAL Pty Ltd v Trade Practices Commission (1992) 39 FCR 472 at 476; see also Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539 at 549. For present purposes it is sufficient to say that a prima…
Western Australia v Vetter Trittler Pty Ltd (in liq) (rec and mgr apptd) [1991] FCA 339
Citation 6 (Para 2)

…e out if, on the material before the court, inferences are open which, if translated into findings of fact, would support the relief claimed: Western Australia v Vetter Trittler Pty Ltd (in liq) (1991) 30 FCR 102 at 110. Or, to put the matter more prosaically as Lee J did in Century Insurance (in provisional liquidation) v New Zealand Guardian Trust [1996]…
Chamberlain v Commissioner of Taxation [1991] FCA 70
Citation 7 (Para 2)

…ut the advantage of discovery and other procedural aids to the making out of a case: see e.g. Merpro Montassa Ltd v Conoco Specialty Products Inc [1991] FCA 70; (1991) 28 FCR 387 at 390. It “should not call for a substantial inquiry”: WSGAL Pty Ltd v Trade Practices Commission (1992) 39 FCR 472 at 476; see also…
Merpro Montassa Ltd v Conoco Specialty Products Inc [1991] FCA 72
Citation 8 (Para 2)

…s are open which, if translated into findings of fact, would support the relief claimed: Western Australia v Vetter Trittler Pty Ltd (in liq) (1991) 30 FCR 102 at 110. Or, to put the matter more prosaically as Lee J did in Century Insurance (in provisional liquidation) v New Zealand Guardian Trust [1996] FCA 376: Wh…
Commonwealth v Tasmania [1983] HCA 21
Citation 9 (Para 15)

…Even taking into consideration general rules of interpretation relevant to international treaties (cf Commonwealth v Tasmania (1983) 158 CLR 1), the intention expressed in the preamble to the Hague Convention is that service of judicial documents be facilitated as between Convention signatories. It is consistent wi…
Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd [1996] FCA 703
Citation 10 (Para 2)

…quiry”: WSGAL Pty Ltd v Trade Practices Commission (1992) 39 FCR 472 at 476; see also Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539 at 549. For present purposes it is sufficient to say that a prima facie case for relief is made out if, on the material before the court, inferences are open…

Legislation Cited

Copyright Act 1968 (Cth) 131C, 202(1), 84
4 mentions (from Para 1)
Federal Court of Australia Act 1976 (Cth) 19
2 mentions (from Para 17)
Federal Court Rules 2011 (Cth)
1 mention

Citation:		Bell v Steele [2011] FCA 1390
Parties:		RICHARD KENNETH BELL v TANYA STEELE
File number:		QUD 391 of 2011
Judge:		COLLIER J
Date of judgment:		6 December 2011
Catchwords:		PRACTICE AND PROCEDURE – service of originating application in foreign country – rules 10.42 and 10.43(2), (3), (4) Federal Court Rules – Article 10(a) Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Convention”) – prima facie case
Words and phrases:		“in accordance with”
Legislation:		Copyright Act 1968 (Cth) ss 84, s 22(4)(b), 131C, 202(1) Federal Court of Australia Act 1976 (Cth) s 19 Federal Court Rules rr 10.42, 10.43 Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters Art 10(a), entered into force on 10 November 1965
Cases cited:		Ackermann v Levine 788 F2d 830, 839 (2d Cir 1988) cited Australian Competition and Consumer Commission v Yellow Page Marketing BV [2010] FCA 1218 cited Boschetti v Crean (1993) 41 FCR 536 cited Cantara v Peeler 267 AD 2d 997, 701 NYS 2d 556 (4th Dept 1999) cited Commonwealth v Tasmania (1983) 158 CLR 1 cited Fernandez v Univan Leasing 15 AD 3d 343, 790 NYS 2d 155 (2d Dept 2005) cited Ho v Akai (in liq) [2006] FCAFC 159 cited In re Cinar Corp. Securities Litigation 186 FSupp 2d 279 (SDNY 2002) cited
Ozer C, “How Courts in New York View Service of Process Abroad by Mail” 17 Dec 2009 NYLJ
Date of hearing:	6 December 2011
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	25
Solicitor for the Applicant:	Mr J Swinson of Mallesons Stephen Jaques
Counsel for the Respondent:	The Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 391 of 2011

BETWEEN:	RICHARD KENNETH BELL Applicant
AND:	TANYA STEELE Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	6 DECEMBER 2011
WHERE MADE:	BRISBANE

JUDGE:	COLLIER J
DATE:	6 DECEMBER 2011
PLACE:	BRISBANE