Fisher v Isuzu Motors Ltd - [2024] FCA 1109

FEDERAL COURT OF AUSTRALIA
Fisher v Isuzu Motors Ltd [2024] FCA 1109

File number(s): NSD 1109 of 2024

Judgment of: WIGNEY J

Date of judgment: 19 September 2024

Date of publication of reasons: 25 September 2024

Catchwords: PRACTICE AND PROCEDURE – service of originating application and statement of claim on respondent based in Japan – whether service of the documents “not practicable” – deemed service ordered pursuant to rules 10.23 and 10.48 Federal Court Rules 2011 (Cth).

Legislation:
Competition and Consumer Act 2010 (Cth) sch 2

Federal Court of Australia Act 1976 (Cth) s 37M

Federal Court Rules 2011 (Cth) rr 10.23, 10.24, 10.43C, 10.44, 10.48, 10.64

Cases cited:
Australian Securities and Investments Commission v China Environment Group Ltd [2013] FCA 286

bCode Proprietary Limited (in liq) v Holford [2018] FCA 798

Sanum Investments Limited v ST Group Co., Ltd (No. 2) [2019] FCA 1047

Mercator Property Consultants Pty Ltd v Christmas Island Resort Pty Ltd (Nicholson J, 14 July 1998, unreported)

Division: General Division

Registry: New South Wales

National Practice Area: Commercial and Corporations

Sub-area: Regulator and Consumer Protection

Number of paragraphs: 15

Date of hearing: 19 September 2024

Counsel for applicants: Q Rares with Mr S Thomson

Solicitor for applicants: Piper Alderman

ORDERS

NSD 1109 of 2024

BETWEEN:
GEOFFREY FISHER

First Applicant

CDR GEOTECHNICAL & ENVIRONMENTAL SERVICES PTY LTD (ACN 168 381 584)

Second Applicant

AND:
ISUZU MOTORS LIMITED (JAPANESE

PUBLIC COMPANY LIMITED BY SHARES)

Respondent

ORDER MADE BY:

WIGNEY J

DATE OF ORDER:

19 SEPTEMBER 2024

THE COURT NOTES THAT:
1.These orders are made on an ex parte basis. The Respondent is yet to file appearance.
2.On 9 September 2024, the Applicants made a request for service of the Originating Application, Statement of Claim and other related documents on the Respondent in accordance with rule 10.64 of the Federal Court Rules 2011 (Cth) (Federal Court Rules) to serve those documents under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.
3.In addition, the Applicants have taken other steps to bring the Originating Application and Statement of Claim to the attention of the Respondent, including by exchanging correspondence with the Respondent’s legal representatives, Nagashima Ohno & Tsunematsu.
4.By letter dated 6 September 2024, Nagashima Ohno & Tsunematsu confirmed receipt of correspondence from the Applicants’ legal representatives, including:
(a)a letter from the Applicants’ legal representative to the registered office address of the Respondent dated 20 August 2024 (posted 21 August 2024) enclosing the Originating Application and the Statement of Claim; and
(b)an email from the Applicants’ legal representative to the General Counsel of the Respondent’s Australian subsidiary, Isuzu Australia Limited (ACN 006 962 572) (IAL), Ms Kathryn Ball, dated 14 August 2024, attaching the Originating Application and the Statement of Claim.

THE COURT ORDERS THAT:
1.Pursuant to rule 10.23 or rule 10.48 of the Federal Court Rules, the Originating Application and Statement of Claim filed 14 August 2024 in this proceeding are taken to have been served on the…

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.

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Details

Case: [2024] FCA 1109
Decision Date: 19 September 2024

CaseChat Overview and Summary

Fisher brought an action against Isuzu Motors Ltd, a Japanese corporation, in the Federal Court of Australia. The dispute involves an allegation of breach of warranty in relation to a vehicle purchased by Fisher from Isuzu. Isuzu, based in Japan, has not yet appeared in the proceedings, prompting Fisher to seek orders for alternative service of the originating application and statement of claim due to the difficulty in serving the documents on Isuzu directly. The central legal issue before the court was whether the service of the originating application and statement of claim on Isuzu could be deemed not practicable under the Federal Court Rules, thereby allowing for alternative service methods.

The court considered the circumstances under which service could be considered not practicable. It noted that Isuzu's registered office in Japan and the difficulties in serving legal documents on a foreign corporation were significant factors. The court concluded that given Isuzu's location and the impracticality of serving the documents in the usual manner, alternative service was justified. The court found that the requirements for deemed service under rules 10.23 and 10.48 of the Federal Court Rules 2011 were satisfied. The court granted Fisher's application for deemed service, allowing the documents to be sent by email and post to Isuzu’s registered office in Japan and to a legal representative in Australia.

The court ordered that the originating application and statement of claim were deemed served on Isuzu on the specified dates and by the specified methods. It also granted Fisher leave to serve a copy of these orders on Isuzu outside Australia and to effect service through a specified legal representative. Isuzu was required to file a notice of address for service by a specified date and the matter was listed for a case management hearing. Costs were reserved pending further orders.

Orders

Orders of the court

1. Pursuant to rule 10.23 or rule 10.48 of the Federal Court Rules, the Originating Application and Statement of Claim filed 14 August 2024 in this proceeding are taken to have been served on the Respondent by the Applicants having sent a copy of those documents to the Respondent:

(a) by email to Ms Ball of IAL on 14 August 2024; and

(b) by post to the below registered office address of the Respondent in Japan on 21 August 2024:

(i) Yokohama Gate Tower 2-5, Takashima 1- chome, Nishi-ku, Yokohama-Shi, Kanagawa-ken, 220-8720, Japan; and

(ii) 1-Chome 2-5, Takashima, Yokohama Nishi-Ku, Kanagawa, 220-0011, Japan.

2. Pursuant to rule 10.44 of the Federal Court Rules, the Applicants have leave to serve a copy of these orders on the Respondent outside Australia.

3. Pursuant to rule 10.24 of the Federal Court Rules, the Applicants have leave to effect service of these orders on the Respondent by transmitting a copy to Mr Shunji Matsuda of Nagashima Ohno & Tsunematsu at shunji_matsuda@noandt.com.

4. Pursuant to rule 10.43C of the Federal Court Rules, the Respondent is to file a notice of address for service on or before the 2 October 2024.

5. The matter be listed for a case management hearing at 9.30am on 14 October 2024.

6. Costs are reserved.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	NSD 1109 of 2024
Judgment of:	WIGNEY J
Date of judgment:	19 September 2024
Date of publication of reasons:	25 September 2024
Catchwords:	PRACTICE AND PROCEDURE – service of originating application and statement of claim on respondent based in Japan – whether service of the documents “not practicable” – deemed service ordered pursuant to rules 10.23 and 10.48 Federal Court Rules 2011 (Cth).
Legislation:	Competition and Consumer Act 2010 (Cth) sch 2 Federal Court of Australia Act 1976 (Cth) s 37M Federal Court Rules 2011 (Cth) rr 10.23, 10.24, 10.43C, 10.44, 10.48, 10.64
Cases cited:	Australian Securities and Investments Commission v China Environment Group Ltd [2013] FCA 286 bCode Proprietary Limited (in liq) v Holford [2018] FCA 798 Sanum Investments Limited v ST Group Co., Ltd (No. 2) [2019] FCA 1047 Mercator Property Consultants Pty Ltd v Christmas Island Resort Pty Ltd (Nicholson J, 14 July 1998, unreported)
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Number of paragraphs:	15
Date of hearing:	19 September 2024
Counsel for applicants:	Q Rares with Mr S Thomson
Solicitor for applicants:	Piper Alderman

ORDER MADE BY:	WIGNEY J
DATE OF ORDER:	19 SEPTEMBER 2024