Lamont v MALISHUS and Ors (No.3)
[2018] FCCA 1294
•2 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LAMONT v MALISHUS & ORS (No.3) | [2018] FCCA 1294 |
| Catchwords: PRACTICE AND PROCEDURE – Service of originating process on person in New Zealand – whether prior leave of the Court is required – prior leave not required. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.6.14 |
| Cases cited: Société des Produits Nestlé SA & Anor v Christian [2014] FCCA 367 |
| Applicant: | DARREN LAMONT |
| First Respondent: | MALISHUS NZCN 4429858 |
| Second Respondent: | ROBERT JURCIC |
| Third Respondent: | CLINTON SELWYN |
| Fourth Respondent: | RIMA NICHOLLS |
| File Number: | SYG 2008 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 2 May 2018 |
| Date of Last Submission: | 2 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 2 May 2018 |
REPRESENTATION
| Applicant in person ex parte |
ORDERS
The application in a case filed on 24 April 2018 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2008 of 2014
| DARREN LAMONT |
Applicant
And
| MALISHUS NZCN 4429858 |
First Respondent
| ROBERT JURCIC |
Second Respondent
| CLINTON SELWYN |
Third Respondent
| RIMA NICHOLLS |
Fourth Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This matter was listed before me today in response to an application in a case filed by the applicant, Mr Lamont, on 24 April 2018. It was listed and heard by me ex parte.
A number of orders are sought in the application in a case, the first of which is that the applicant have leave to serve the application and statement of claim on the fourth respondent in New Zealand. The application for that order was brought before me on the last occasion the matter was before me. I there suggested to Mr Lamont that that was the procedure by which an overseas respondent can potentially be joined as a party in the proceeding. What I there said is true, as a general proposition, but what I failed to bring to my mind was the existence of the Trans-Tasman Proceedings Act 2010 (Cth) (Act) which has specific provisions which apply to Australian courts, including the Federal Circuit Court of Australia, for the serving of originating process on a person in New Zealand.
The relevant provisions are contained in Division 2 of Part 2 of the Act, which is headed “Service in New Zealand of initiating documents issued by Australian courts and tribunals”. Section 8 of the Act provides that Part 2 applies to, among other things, a “civil proceeding commenced in an Australian court”. The expression “an Australian court” is defined in s.4 of the Act to mean, among other things, “a federal court”. The Federal Circuit Court of Australia is, of course, a federal court and, therefore, Part 2 applies to this Court.
Then one turns to s.9 of the Act, which provides:
(1)An initiating document issued by an Australian court or tribunal that relates to the proceeding may be served in New Zealand under this Part.
(2)However, the document must be served in New Zealand in the same way that the document is required or permitted, under the procedural rules of the Australian court or tribunal, to be served in the placed of issue.
Also relevant is s.10 and s.11. Section 10 provides that:
Service of an initiating document in New Zealand under section 9:
(a) has the same effect; and
(b) gives rise to the same proceeding;
as if the initiating document had been served in the place of issue.
And section 11 provides:
(1)An initiating document served under section 9 must contain or be accompanied by information for the defendant that is prescribed by the regulations.
(2)For the purposes of subsection (1), the regulations must prescribe general information for the defendant about:
(a)the steps that the defendant must or may take in relation to the proceeding; and
(b)the consequences of the document being served on the defendant in New Zealand under section 9.
The regulations, which are called the Trans-Tasman Proceedings Regulation 2012 (Cth) (Regulations), do prescribe a form. The relevant form is prescribed by reg.5, and is Form 1 to Schedule 1 to the Regulations. Given that the fourth respondent, on whom Mr Lamont wishes to serve the application and a statement of claim is in New Zealand, the prior leave of this Court for the service of any originating process on the fourth respondent is not required. All that is required is that the fourth respondent be served as required by the Federal Circuit Court Rules 2001 (Cth) (FCC Rules), and that at the time of service the fourth respondent is given information in terms of Form 1 of Schedule 1 to the Regulations.
This then leads me to the other orders that are sought in the application in a case. In broad terms, and I do not need to list them, orders are sought in the nature of discovery as against the second and third respondents for them to disclose information in relation to the fourth respondent. For reasons that I will shortly enter into, it is not appropriate that such orders are made, and that leads me to the FCC Rules, which deal with service of originating process in this Court.
The principal rule is that originating process must be served personally on a respondent. There are exceptions to that rule, and the principal one is r.6.14 of the FCC Rules, which is headed “Substituted Service”. I do not propose to enter into what that rule says or what it means. I need only refer to the fact that I considered that rule in an earlier decision, Société des Produits Nestlé SA & Anor v Christian[1]. In broad terms that rule is engaged if, for any reason, it is impracticable to serve the relevant document on a respondent.
[1] [2014] FCCA 367, at [2]-[12]
Mr Lamont filed an affidavit in support of the orders he seeks which sets out, in some detail, steps he has taken in the past to bring this proceeding to the attention of the fourth respondent, Mr Nicholas. Mr Lamont accepts that he has not made any attempt to serve Mr Nicholas personally. In those circumstances, there is no reason – at least at this stage – why Mr Lamont should not be expected at least to attempt personal service of the application and statement of claim on Mr Nicholas in New Zealand. If, for whatever reason, any attempt to serve Mr Nicholas meets with difficulty and, in particular, if Mr Nicholas attempts to avoid service, then it may well be appropriate for Mr Lamont to apply for an order under r.6.14 of the FCC Rules for substituted service. At this stage, however, it is certainly premature for me to consider whether I should make an order for substituted service. The fact that Mr Lamont has done, according to his evidence, much to bring this proceeding to the attention of Mr Nicholas, may well be relevant if Mr Nicholas seeks to avoid service, and an application is brought for substituted service under r.6.14 of the FCC Rules.
During the hearing I informed Mr Lamont – at least, in broad terms – of the matters that I have set out in these reasons for judgment. I indicated to Mr Lamont that, at the conclusion of the hearing, it would be provided to him at least a copy of Form 1 from the Regulations, and a copy of my decision that I mentioned earlier before, in Société des Produits Nestlé SA & Anor v Christian.
In these circumstances, the appropriate course for me today is to make an order that I dismiss the application in a case and, in a moment, I will make that order.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 22 May 2018
3