Director of the Fair Work Building Industry Inspectorate v Baulderstone Pty Limited
[2013] FCCA 1792
•4 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE v BAULDERSTONE PTY LIMITED & ORS | [2013] FCCA 1792 |
| Catchwords: PRACTICE AND PROCEDURE – Application for leave to serve subpoena outside Australia – preconditions to exercise of power to grant leave – service outside Australia under Article 8 of the Hague Convention – whether person to be served outside Australia is a national of Australia – service by fax in the country where service is to be made – discretionary factors – whether granting leave consistent with international comity – whether subpoena is capable of being enforced for non-compliance – whether evidence of person to whom subpoena is to be served important to proceedings – whether sufficient time allowed for compliance with subpoena – leave to serve subpoena outside Australia granted on terms. |
| Legislation: Fair Work Act 2009 (Cth), s.346 Federal Circuit Court of Australia Act 1999 (Cth), s.43(2) Federal Circuit Court Rules 2001 (Cth), r.15A.04 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965 |
| Arhill Pty Ltd v General Terminal Company Pty Ltd (1990) 23 NSWLR 545 Caswell v Sony/ATV Music Publishing (Aust) Pty Ltd [2012] NSWSC 986 Ex p Bain, re Sawers (1879) 12 Ch D 522 Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International NV [2007] FCAFC 43 Re Tucker; Ex parte Tucker [1988] 1 All ER 603 Stemcor (A/sia Pty Ltd v Oceanwave Line SA [2004] FCA 391 |
| Applicant: | DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE |
| First Respondent: | BAULDERSTONE PTY LIMITED |
| Second Respondent: | GREGORY LEMIN |
| Third Respondent: | RAZ RAZZLOG |
| Fourth Respondent: | NICOLE KIDMAN |
| File Number: | SYG 1434 of 2012 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 1 November 2013 |
| Delivered at: | Sydney |
| Delivered on: | 4 November 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr White |
| Solicitors for the Applicant: | Corrs Chambers Westgarth |
| No appearance by or on behalf of the Respondents. |
ORDERS
Subject to the orders set out in paragraphs 2, 3, and 4 below, the applicant has leave pursuant to rule 10.44(1) of the Federal Court Rules 2011 to serve on Pedro da Silva in India a subpoena requiring Pedro da Silva to attend the Court to give evidence at 10.15 am on 13 November 2013 (Subpoena).
A copy of a sealed copy of the Subpoena, and a copy of a sealed copy of these Orders, must be served on Pedro da Silva:
(a)by 5.00 pm local time on 5 November 2013;
(b)in the manner required by rule 6.06 of the Federal Circuit Court Rules 2001; and
(c)by an agent or by agents of the Australian High Commission in New Delhi, India.
Subject to order 4, Pedro da Silva may apply to the Court for an order that orders 1 and 2 be set aside and for any other orders he may consider appropriate.
Pedro da Silva may apply for an order or orders pursuant to order 3:
(a)by sending his application for such order or orders in whatever form Pedro da Silva considers appropriate to the email address of the Associate to Judge Manousaridis, that email address being [email protected]; and
(b)after giving the applicant 24 hours notice by email or by such other means as is appropriate of his intention to apply to the Court for an order or orders pursuant to order 3.
The applicant has liberty to apply on such notice as the circumstances warrant.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1434 of 2012
| DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE |
Applicant
And
| BAULDERSTONE PTY LIMITED |
First Respondent
| GREGORY LEMIN |
Second Respondent
| RAZ RAZZLOG |
Third Respondent
| NICOLE KIDMAN |
Fourth Respondent
REASONS FOR JUDGMENT
Before the Court is an application for an order pursuant to r.10.44 of the Federal Court Rules 2011 (FCR) for leave to serve a subpoena on a person outside Australia to attend this Court to give evidence. The application is made in a proceeding brought under the Fair Work Act 2009 (Cth) (FW Act), and is made in circumstances of some urgency.
Power
Neither the Federal Circuit Court of Australia Act 1999 (Cth) (FCCA) nor the Federal Circuit Court Rules 2001 (FCCR) contains a provision which in terms authorises this Court to make an order to the effect sought by the applicant. Section 43(2) of the FCCA, however, provides that, to the extent the FCCR are insufficient, the FCR are to apply, with necessary modification, and in so far as they are capable of application, to proceedings before this Court, other than proceedings under the Family Law Act 1975, the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988. As the FCCR do not contain a provision to the effect of FCR r.10.44, to that extent the FCCR are insufficient, and FCR r.10.44 therefore applies to a proceeding before this Court brought under the FW Act.
Principles
FCR r.10.44(1) provides:
A party may apply to the Court for leave to serve a document filed in or issued by the Court, other than an originating application, on a person in a foreign country in accordance with a convention, the Hague Convention or the law of the foreign country.
FCR r.10.44(2) provides that an application under FCR r.10.44(1) must be accompanied by an affidavit that includes the information mentioned in paragraphs 3(a)-(c) of FCR r.10.43. This information is the name of the country where the person to be served is or is likely to be, the proposed method of service, and information that shows that the proposed method of service is permitted by an applicable convention, including the Hague Convention[1] or, where no convention applies, the law of the foreign country.
[1] This is a reference to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965
The power conferred by FCR r.10.44(1) is discretionary. It has been held that the principles considered by Rogers CJ Comm Div in Arhill Pty Ltd v General Terminal Company Pty Ltd[2] in relation to the exercise of a similar power conferred under a differently worded rule in the Supreme Court Rules 1970 (NSW) were relevant to the exercise of the power conferred by O 27 of the previous Federal Court Rules.[3] In my opinion, those principles are also relevant to the exercise of the power conferred by FCR r.10.44(1).
[2] (1990) 23 NSWLR 545
[3] Stemcor (A/sia Pty Ltd v Oceanwave Line SA [2004] FCA 391 (Allsop J); Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International NV [2007] FCAFC 43 (Black CJ, Allsop and Middleton JJ). See also the recent helpful survey of the authorities by Hallen AsJ (as his Honour then was) in Caswell v Sony/ATV Music Publishing (Aust) Pty Ltd [2012] NSWSC 986
In Arhill Rogers CJ Comm Div said that the power to grant leave to serve a document such as a subpoena to a person overseas should “be construed consistently with “the established criteria of international law with regard to comity””.[4] The reference to “comity” is a reference to the principle that it “is not consistent with ordinary principles of justice or the comity of nations that the Legislature of one country should call on the subject of another country to appear before its tribunals when he has never been within their jurisdiction”.[5] Rogers CJ Comm Div noted that another way of stating the principle was “that a foreigner, resident abroad, will not lightly be subjected to a local jurisdiction”.[6]
[4] At p 553F. The quoted passage is from Re Tucker; Ex parte Tucker [1988] 1 All ER 603 at page 611.
[5] Ex p Bain, re Sawers (1879) 12 Ch D 522 at 527 (James LJ)
[6] At page 551F
Another consideration relevant to the exercise of the power under FCR r.10.44(1) to grant leave to serve a subpoena on a person overseas is whether the Court will have power to enforce it. This point was made by Allsop J (as his Honour then was) in Stemcor (A/sia Pty Ltd v Oceanwave Line SA in the context of an application for leave to serve a subpoena in Germany on a German company:[7]
Such a subpoena, if served, even using the methods contemplated by the Convention,[8] is not capable of enforcement. Without other steps being taken to enlist German governmental assistance (whether executive or judicial), Australian courts cannot enforce compliance on pain of punishment. In the absence of enforcement procedures the order is an empty threat, or the equivalent of a mere request couched in imperative terms. The court should not be seen to be engaged in such conduct.
[7] [2004] FCA 391 at [12]
[8] This was a reference to the Convention between the United Kingdom and Germany regarding Legal Proceedings in Civil and Commercial Matters done at London on 20 March 1928 and which entered force on 15 March 1929, to which Australia became a party on 3 January 1933.
Also relevant to the exercise of the discretion are such matters as the importance to the proceeding in which the application is made of the documents referred to in the subpoena or the evidence of the person to whom the subpoena is addressed, and the time the addressee of the subpoena is to comply with the subpoena.
Information required by FCR r. 10.43(3)
The first matter I must consider is whether there is affidavit evidence of the information referred to in FCR r.10.43(3)(a)-(c).
The person on whom the applicant proposes to serve the subpoena is Mr Pedro da Silva. There is evidence before me of an extract from the “Linked-In” website which was accessed on or about 17 October 2013 which shows that Mr da Silva is employed by Leightons Welspun Contractors Pvt Ltd in the New Delhi area in India. I am satisfied that India is the place in which the applicant proposes to serve Mr da Silva with the subpoena. The applicant, therefore, has provided to the Court the information required by FCR r.10.43(3)(a).
The applicant proposes that the subpoena be served on Mr da Silva by facsimile or by such other means as the Court sees fit pursuant to Article 8 of the Hague Convention. Thus, the applicant has provided the information required by FCR r.10.43(3)(b).
I admitted into evidence extracts from the website of the Commonwealth Attorney-General’s Department which satisfy me that India became a party to the Hague Convention in 2007, subject to three reservations. None of those reservations apply to Article 8 which provides:
Each Contracting State shall be free to effect service of judicial documents upon persons abroad, without application of any compulsion, directly through its diplomatic or consular agents.
Any State may declare that it is opposed to such service within its territory, unless the document is to be served upon a national of the State in which the documents originate.
There is no evidence before me about whether India has declared that it is opposed to such service within its territory. The applicant, however, adduced evidence of additional extracts from the Linked-In website which shows that Mr da Silva obtained his secondary and tertiary qualifications in Canberra and has worked for most of his professional life to date in Australia. From this evidence, I find that Mr da Silva is a national of Australia. Thus, even if India has declared that it is opposed to service of judicial documents in its territory in the manner provided by Article 8 of the Hague Convention, such opposition would not apply to service of judicial documents on Mr da Silva who I am satisfied is a national of Australia.
The applicant also proposes to serve the subpoena by facsimile. There is in evidence the Delhi Courts Service of Process by Courier, Fax and Electronic Mail Service (Civil Proceedings) Rules 2010 (Delhi Rules). These are rules which are declared to have been made pursuant to Part X of the Code of Civil Procedure 1908 and stated to apply to all civil suits pending before the “High Court of Delhi or any Subordinate Court or Tribunal in Delhi”. Chapter 3 of the Delhi Rules is titled “Service by Fax”.
The applicant submits that the Delhi Rules “contemplate that a subpoena to give evidence may be served by facsimile”.[9] That certainly appears to be the intention of Chapter 3 of the Delhi Rules. On my reading of Chapter 3 of the Delhi Rules, however, service by fax must be done through a relevant court. That is suggested by rule 8 which provides that a “party desirous of sending process by Fax shall provide the Fax Number of the other party whom it would like to serve by Fax”. Accordingly, if the applicant intends to serve the subpoena on Mr da Silva by fax, this must be done through the High Court of Delhi or a “Subordinate Court”.
[9] Affidavit of Ruth Nocka made on 30 October 2013, [8]
The applicant, therefore, has also provided evidence of the information required by paragraph 3(c) of the FCR r.10.43.
Discretionary Factors
Having satisfied myself the preconditions for the exercise of the power conferred by FCR r.10.44(1) are met, I must now consider discretionary matters that are relevant to the exercise of that power.
First, to permit service of the subpoena on Mr da Silva, a national of Australia, in the manner provided for by Article 8 of the Hague Convention will not infringe any principle of international comity. Similarly, service of the subpoena in the manner provided for by the Delhi Rules also will not infringe any principle of international comity.
Second, the granting of leave to serve a subpoena on Mr da Silva will not be an empty threat. From the fact that I have found that Mr de Silva is a national of Australia, and that the Linked-In webpage shows that Mr da Silva has spent most of his professional life in Australia, I infer that Mr da Silva is likely to return to Australia. In those circumstances, if, without lawful excuse, Mr da Silva does not comply with the subpoena, he will be liable to punishment for non-compliance when he returns to Australia.
Third, there is the importance of Mr da Silva’s evidence to the proceedings. That requires me to briefly identify the applicant’s claims, the evidence the applicant expects Mr da Silva will give if he complies with the subpoena, and the relevance of Mr da Silva’s evidence to the applicant’s claims.
The applicant claims, among other things, that, in contravention of s.346 of the FW Act, the respondents dismissed an employee of the first respondent, and therefore took adverse action against the employee, because the employee ceased to be a member of the Construction Forestry Mining and Engineering Union (CFMEU). To prove this claim, the applicant relies on a chain of events, one of which is a meeting which Mr da Silva is alleged to have attended, another is an email communication from Mr da Silva to the first respondent, and another is a second meeting which Mr da Silva attended.
For the purposes of this application, I admitted into evidence a copy of a statement dated 31 March 2010 Mr da Silva gave. I am satisfied that Mr da Silva’s statement, if accepted, would prove the three events on which the applicant relies for proving its claim. I am also satisfied that Mr da Silva’s evidence is sufficiently important to proving the applicant’s claim to warrant the granting of leave to issue a subpoena under FCR r.10.44(1), assuming all other matters relevant to the granting of leave are satisfied.
Finally, there is the matter of whether, if leave is granted, Mr da Silva will have sufficient time to comply with the subpoena. Under FCCR r.15A.04, unless the Court orders otherwise, a subpoena requiring attendance must be served at least 7 days before attendance under the subpoena is required. The applicant proposes to make the subpoena returnable on the date of the hearing, namely 13 November 2013 and, therefore, proposes to serve the subpoena by no later than 5 November 2013.
The time fixed under FCCR r.15.04 assumes that the subpoena will be issued in Australia. I do not think it can be assumed that that time is appropriate for a subpoena which is to be served outside Australia. I am not satisfied that, in the circumstances of this case, it is reasonable to expect Mr da Silva to attend Court within the time contemplated by the applicant. There is no evidence that Mr da Silva has been informed of the hearing of this matter.
On the other hand, I also am not satisfied that it is unreasonable to require Mr da Silva to attend the hearing within the time contemplated by the applicant. The solicitor for the applicant contacted Mr da Silva on or about 11 September 2012 and requested that he provide an affidavit for the purpose of these proceedings, but Mr da Silva declined to do so. On 25 October 2013 the solicitor for the applicant attempted to contact Mr da Silva by telephone, but Mr da Silva did not return the solicitor’s calls. Further, as I note above, Mr da Silva is employed by Leightons Welspun Contractors Pvt Ltd in the New Delhi area in India, and Leightons Welspun has an address in New Delhi.
Decision
Apart from the question of whether it is reasonable to require Mr da Silva to comply with the subpoena within the time contemplated by the applicant, I am satisfied that all of the preconditions to the granting of leave under FCR r.10.44(1) to serve a subpoena on Mr da Silva in India are met.
In my opinion, the uncertainty about whether Mr da Silva will be given a reasonable time to comply with the subpoena, if I grant leave, can be dealt with by my granting leave on terms. The terms I propose to impose on the granting of leave is that Mr da Silva be at liberty to apply to the Court on 24 hours’ notice for an order that the granting of leave to serve the subpoena on him be set aside or for such other order as he may consider appropriate.
Accordingly, I propose to grant leave to the applicant to serve the subpoena on Mr da Silva in India subject to these terms.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 4 November 2013
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