Fiorentino v Irons

Case [1997] FCA 1425

FEDERAL COURT OF AUSTRALIA

PRACTICE & PROCEDURE - service outside the jurisdiction - summons to attend examination under s 596B(1) Corporations Law - whether summons is originating process for the purposes of O 8 r 1 Federal Court Rules.

Corporations Law - s 596B(1)
Federal Court of Australia Act 1976 (Cth) - s 4
Federal Court Rules - O 8 rr 1, 2, 3

Re Sherlock (1991) 102 ALR 156 - distinguished
Re Austral Oil Estates Limited (in liq) (1986) 7 NSWLR 440 - distinguished
BP Exploration Co (Libya) v Hunt [1980] 1 NSWLR 496 - distinguished
Re Interchase Corporation Limited (1996) 68 FCR 481 - considered
Pasdale Pty Limited v Concrete Constructions (1995) 59 FCR 446 - considered

PINO FIORENTINO v ROSLYN MARRIETTA IRONS, ROBERT STEWART FRANCIS DWYER, ALLAN REGINALD DWYER, WADE HEWITT

NG 3204 of 1997

FOSTER J
12 NOVEMBER 1997
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

 NG 3204 of 1997

In the matter of ABSOLUTELY FABULOUS EXHIBITIONS & EVENTS (MANAGEMENT) PTY LTD (In liquidation) ACN 064 673 570

BETWEEN:

PINO FIORENTINO
APPLICANT

AND:

ROSLYN MARRIETTA IRONS
FIRST RESPONDENT

ROBERT STEWART FRANCIS DWYER
SECOND RESPONDENT

ALLAN REGINALD DWYER
THIRD RESPONDENT

WADE HEWITT
FOURTH RESPONDENT

JUDGE:

FOSTER J

DATE OF ORDER:

12 NOVEMBER 1997

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

  1. Leave be granted to the applicant to serve outside the Commonwealth a summons to attend examination under s 596B(1) of the Corporations Law addressed to Robert Stewart Francis Dwyer.

  1. The applicant’s solicitors arrange for the summons to be served personally upon Mr Dwyer in England.

  1. The costs of this application be costs in the cause.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

 NG 3204 of 1997

In the matter of ABSOLUTELY FABULOUS EXHIBITIONS & EVENTS (MANAGEMENT) PTY LTD (In liquidation) ACN 064 673 570

BETWEEN:

PINO FIORENTINO
APPLICANT

AND:

ROSLYN MARRIETTA IRONS
FIRST RESPONDENT

ROBERT STEWART FRANCIS DWYER
SECOND RESPONDENT

ALLAN REGINALD DWYER
THIRD RESPONDENT

WADE HEWITT
FOURTH RESPONDENT

JUDGE:

FOSTER J

DATE:

12 NOVEMBER 1997

PLACE:

SYDNEY

REASONS FOR JUDGMENT
(Extempore)

The Court has before it an amended notice of motion brought by the applicant, Pino Fiorentino, seeking leave to serve a summons outside the Commonwealth of Australia. The summons is a summons to attend for examination under s 596B(1) of the Corporations Law.  It is addressed to one Robert Stewart Francis Dwyer who is presently in England.

The applicant is the liquidator of Absolutely Fabulous Exhibitions and Events (Management) Pty Limited.  Mr Dwyer is the second respondent to the application.  The applicant seeks to examine Mr Dwyer in order that inquiry may be made of him in relation to activities of his in respect of the company and in respect of a related company known as A.S.K. Promotional Solutions Pty Limited.  The first, third and fourth respondents are resident in Australia and I am advised that summonses have been…

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Details
AGLC
Fiorentino v Irons [1997] FCA 1425
Case
[1997] FCA 1425
Decision Date

CaseChat Overview and Summary

Fiorentino v Irons involved a dispute concerning the examination of a non-resident witness under the Corporations Law. The applicant sought to serve a summons on Robert Stewart Francis Dwyer, who was located in England, for an examination to assist in the investigation of the respondent. The court was tasked with determining whether it had jurisdiction to order the service of the summons outside the Commonwealth and, if so, how this could be effectively achieved.

The primary legal issue was whether the court had the authority to order the service of a summons on a non-resident individual and, if so, the appropriate means of ensuring that the summons was personally served on the witness in England. The applicant argued that the court's jurisdiction extended to ordering service outside Australia and that the summons should be served personally to ensure compliance and effectiveness. The respondent, on the other hand, questioned the court's ability to mandate service abroad and suggested alternative methods for achieving service.

The court found that it did have the jurisdiction to order the service of the summons outside the Commonwealth under section 596B(1) of the Corporations Law. It determined that personal service was the most appropriate method to ensure that the witness was properly notified and could attend the examination. The court granted leave for the summons to be served personally on Mr Dwyer in England and directed the applicant's solicitors to arrange for this to occur. The court also ordered that the costs of the application be costs in the cause.

Orders

Orders of the court

1.

Leave be granted to the applicant to serve outside the Commonwealth a summons to attend examination under s 596B(1) of the Corporations Law addressed to Robert Stewart Francis Dwyer.

2.

The applicant’s solicitors arrange for the summons to be served personally upon Mr Dwyer in England.

3.

The costs of this application be costs in the cause.

Note:

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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