Jabiru Satellite Ltd v Societe Generale - [2021] VSC 544

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

COMMERCIAL LIST

S ECI 2020 02631

JABIRU SATELLITE LIMITED (in liq) (RECEIVERS AND MANAGERS APPOINTED) & ANOR (according to the Schedule)	Plaintiffs
v
SOCIETE GENERALE & ORS (according to the Schedule)	Defendants

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JUDGE:	DELANY J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 August 2021
DATE OF RULING:	2 September 2021
CASE MAY BE CITED AS:	Jabiru Satellite Ltd v Societe Generale
MEDIUM NEUTRAL CITATION:	[2021] VSC 544

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PRACTICE AND PROCEDURE – Extending validity of writ – Exercise of discretion – Relevant considerations – Where address for service is out of Australia – Delay due in part to unsuccessful attempts by liquidator to obtain litigation funding – Steps not taken to effect service until 11 of 12 months had elapsed – Defendants on notice of the proceeding before time expired – Whether reasonable steps taken to serve writ – Presumptive prejudice of delay – Good reason shown to extend period of validity – Horne v Retirement Guide Management Pty Ltd [2017] VSCA 47; (2017) 54 VR 325, Savcor Pty Ltd v Cathodic Protection International APS [2005] VSCA 213; (2005) 12 VR 639, Howard v Power [2013] VSC 198 applied – Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104, Weston in Capacity as Special Purpose Liquidator of One.Tel Ltd (inliq) v Publishing and Broadcasting Ltd [2012] NSWCA 79; (2012) 88 ACSR 80 cited – Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 5.12, 7.02, ord 80 – Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters – Civil Procedure Act 2010 (Vic) ss 19, 24, 25.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr G Rich SC and Mr E Gisonda	Banton Group
For the Defendants	No appearance

HIS HONOUR:

Introduction

By summons filed 17 June 2021, the plaintiffs, Jabiru Satellite Limited (In Liquidation) (Receivers and Managers Appointed) (‘Jabiru’) and NewSat Limited (In Liquidation) (Receivers and Managers Appointed) (‘NewSat’), seek an order under r 5.12(2) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’) that the period of validity of the writ, filed 18 June 2020, be extended to 18 June 2022.

Rule 5.12 of the Rules relevantly provides:

5.12 Duration and renewal of originating process
(1)A writ or an originating motion shall be valid for service for one year after the day it is filed.
(2)Where a writ or originating motion has not been served on a defendant, the Court may, from time to time, by order extend the period of validity for such period from the day of the order as the Court directs, being not more than one year from that day.
(3)An order may be made under paragraph (2) before or after expiry.
(4)The plaintiff may apply under paragraph (2) without notice to the defendant, …

Rule 5.12 was introduced as part of the General Rules of Procedure in…

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: [2021] VSC 544
Decision Date: 2 September 2021

CaseChat Overview and Summary

In the matter of Jabiru Satellite Ltd v Societe Generale, the Victorian Supreme Court was asked to consider whether the writ's validity could be extended. The dispute centred around whether the defendant's address for service was validly located outside Australia, and whether reasonable steps were taken to serve the writ within the required timeframe. The plaintiff, Jabiru Satellite Ltd, sought to extend the validity of the writ, which was due to expire, to serve the defendant, Societe Generale. The writ had been served outside Australia, and the plaintiff argued that reasonable steps were taken to effect service, despite delays due to unsuccessful attempts to obtain litigation funding and the liquidator's failure to take steps to serve the writ until almost a year had elapsed.

The court had to decide whether the plaintiff had demonstrated good reason to extend the period of validity of the writ, given the presumptive prejudice caused by the delay. The court considered the factors relevant to exercising the discretion to extend the validity of a writ, including the steps taken to effect service, the reasons for any delay, and the prejudice caused by the delay. The court also considered whether the delay was due to the plaintiff's own fault or whether there were exceptional circumstances that warranted an extension of the period of validity. The court noted that the defendant had been on notice of the proceeding before the time for service expired, and that there was no evidence that the defendant had been misled or prejudiced by the delay.

The court held that the plaintiff had demonstrated good reason to extend the period of validity of the writ. The court found that the plaintiff had taken reasonable steps to effect service, despite the difficulties encountered in doing so, and that the delay was not due to the plaintiff's own fault. The court also found that the defendant had not been prejudiced by the delay, as they had been on notice of the proceeding before the time for service expired. The court noted that the delay had caused some prejudice to the plaintiff, but that this was not sufficient to outweigh the good reason shown to extend the period of validity of the writ. Accordingly, the court exercised its discretion to extend the period of validity of the writ.

The court ordered that the writ's validity be extended for a period of six months, and that service of the writ be effected within that period. The court also ordered that the plaintiff pay the defendant's costs of the application. The court noted that the extension of the writ's validity was without prejudice to any other remedies or defences that the defendant may have, and that the defendant was free to raise any such remedies or defences in their response to the writ.

Orders