Connelly (liquidator), in the matter of CIMC Rolling Stock Australia Pty Ltd (in liq) v One Rail Australia (FLA) Pty Ltd (No 3)

Freightliner Australia Pty Ltd, trading as One Rail Australia, filed an interlocutory application seeking orders for substituted service on Mr Rui (Raymond) Zhan, an individual located overseas, in the Federal Court of Australia. The application sought leave to serve Mr Zhan with several documents related to a cross-claim in the context of an existing proceeding. The primary legal issues addressed by the Court were whether it was practicable to serve Mr Zhan under the Hague Convention, and if not, whether leave for substituted service could be granted under the Federal Court Rules without prior service attempts.

The Court found that it was not practicable to effect service upon Mr Zhan by the means contemplated by the Hague Convention, due to the imprecision of the address provided by ASIC. The Court concluded that there was a serious impracticability in serving Mr Zhan under the Hague Convention, and some need for expedition in the proceeding, which justified granting leave for substituted service. The Court noted that while some attempt at service is typically required before applying for substituted service, exceptions can be made where there is real urgency and evidence of impossibility or serious impracticability. In this case, the Court accepted that such conditions were met, and granted leave for substituted service.

The Court ordered that the documents be served on Mr Zhan by way of email or express, registered post. It also directed the plaintiffs to forward any email received by their solicitors to the email address previously used to communicate with Mr Zhan, unless that address was the only one used previously. Service was deemed to be effected 21 days after posting or sending the documents. The Court reserved costs and provided for the entry of orders in accordance with Rule 39.32 of the Federal Court Rules.