Levy Schneider v Caesarstone Australia Pty Ltd - [2012] VSC 126

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

COMMERCIAL COURT
CORPORATIONS LIST

No. 3809 of 2010

LEVY SCHNEIDER	Plaintiff
v
CAESARSTONE AUSTRALIA PTY LTD & ORS	Defendants

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JUDGE:	DAVIES J
WHERE HELD:	Melbourne
DATE OF HEARING:	2, 16, 30 March 2012
DATE OF JUDGMENT:	4 April 2012
CASE MAY BE CITED AS:	Levy Schneider v Caesarstone Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2012] VSC 126

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PROCEDURE – Subpoenas – Service in foreign country – Leave required under rule 7.06 of the Supreme Court (General Civil Procedure) Rules2005 (Vic) (“SCR”) – Principles to be applied – Application under Order 80 of the SCR not competent without leave – Supreme Court (General Civil Procedure) Rules2005 (Vic), r 7.06, O 80 - Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters 1965

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	IG Waller SC with HL Redd	SBA Law
For the Defendants	MW Wise	Middletons

HER HONOUR:

The Plaintiff has applied to the Prothonotary to serve a subpoena to give evidence on a foreign citizen who is resident in Israel. The Plaintiff relies on Order 80 of the Supreme Court (General Civil Procedure) Rules2005 (Vic) (“SCR”) as the source of the authority to serve the subpoena outside Australia. For the reasons that follow, I have concluded that Order 80 of the SCR is not the source of authority for service of a subpoena outside of Australia and that the leave of the Court is first required under

r 7.06 of the SCR. I have also concluded that leave should not be given in the particular circumstances of this case.

Order 80 of the SCR

Order 80 gives effect to the ratification by Australia of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965 (“the Convention”).[1] This Convention contains the protocol for transmission of a “judicial” or “extra-judicial” document from one Convention country to another Convention country for the purpose of serving the document in the other Convention country. The Convention does not address or comprise substantive rules relating to the actual service of process within the foreign country.
[1]Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 15 November 1965, (entered into force 1 November 2010).

The protocol involves a request for service in the Model Form, the content of which is picked up in Order 80. Order 80 applies to service in a Convention country of a “local judicial document”. That expression is defined in Rule 80.1 to mean:

A judicial document that relates to civil proceedings in the Court.

Rule 80.04(1) provides that a person seeking to have a local judicial document served on a person in a Convention country outside Australia must make application in the form prescribed by r 80.04 to the Prothonotary. If the Prothonotary is satisfied that the application…

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: [2012] VSC 126
Decision Date: 4 April 2012

CaseChat Overview and Summary

Levy Schneider, a party involved in legal proceedings in Australia, sought to serve subpoenas on Caesarstone Australia Pty Ltd, an entity based outside Australia. The dispute came before the Supreme Court of Victoria, which was required to determine the procedural legality of serving these subpoenas abroad. The primary legal issue the court had to address was whether the service of subpoenas on a foreign entity could be carried out without obtaining leave from the court, and if so, under what conditions and principles.

The court examined the relevant rules of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) to ascertain the procedural requirements. Rule 7.06 of the SCR states that leave is required for the service of subpoenas in a foreign country. The court also considered the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters 1965, which outlines the principles for serving legal documents abroad. Additionally, the court assessed whether an application under Order 80 of the SCR could be made without obtaining leave, which it found to be incompetent without the requisite leave.

The court found that the principles under rule 7.06 of the SCR must be strictly adhered to when serving subpoenas abroad, and that any application under Order 80 without leave is not permissible. Consequently, the court ruled that the service of subpoenas on Caesarstone Australia Pty Ltd could only proceed if the necessary leave was first obtained, in accordance with the established legal framework. The court's decision underscores the importance of compliance with procedural rules when dealing with international service of legal documents.

Orders