FEDERAL COURT OF AUSTRALIA
Morris v McConaghy Australia Pty Ltd (No 4) [2018] FCA 1516
File number: NSD 1195 of 2017 Judge: PERRAM J Date of judgment: 10 October 2018 Catchwords: PRACTICE AND PROCEDURE – application for order of deemed service under Federal Court Rules 2011 (Cth) r 10.48 – whether not practicable to serve documents – where request for service previously made under the Hague Convention Legislation: Federal Court Rules r 10.48
Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Opened for signature 15 November 1965. 658 UNTS 163 (entered into force 10 February 1969)
Cases cited: Abela v Baadarani [2013] UKSC 44; [2013] 1 WLR 2043
Australian Securities and Investments Commission v China Environment Group [2013] FCA 286
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2007] FCA 124
Morris v McConaghy Australia Pty Ltd (No 3) [2018] FCA 606
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
Date of hearing: 4 September 2018 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Category: Catchwords Number of paragraphs: 22 Counsel for the Applicant: Mr E Cox Solicitor for the Applicant: Aus Ship Lawyers Counsel for the First and Second Respondent: Mr Y Shariff with Mr C E Bannan Solicitor for the First and Second Respondent: Lander & Rogers Counsel for the Third Respondent: Mr D F Elliot Solicitor for the Third Respondent: Mahony Law Counsel for the Fourth Respondent: Mr D A Hughes Solicitor for the Fourth Respondent: Kemp Strang ORDERS
NSD 1195 of 2017 BETWEEN: JONATHAN MORRIS
Applicant
AND: MCCONAGHY AUSTRALIA PTY LTD ACN 52 168 218 380
First Respondent
MC2 COMPOSITES LTD (A COMPANY INCORPORATED IN THE CAYMAN ISLANDS)
Second Respondent
MARK EVANS
Third Respondent
TIGER YACHT MANAGEMENT LTD (A COMPANY INCORPORATED IN THE CAYMAN ISLANDS)
Fourth Respondent
JUDGE:
PERRAM J
DATE OF ORDER:
10 OCTOBER 2018
THE COURT ORDERS THAT:
1.Prayer 1 of the interlocutory application filed on 27 July 2018 be dismissed.
2.The matter be listed for a case management hearing on 19 October 2018 at 9.30am for determination of costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PERRAM J:
This is an application for deemed service under r 10.48 of the Federal Court Rules 2011 (Cth) (‘FCR’) which provides:
‘10.48 Deemed service
A party may apply to the Court without notice for an order that a document is taken to have been served on a person on the date mentioned in the order if:
(a)it is not practicable to serve the document on the person in a foreign country in accordance with a convention, the Hague Convention or the law of a foreign country; and
(b)the party provides evidence that the document has been brought to the attention of the person to be served.
Note: Without notice is defined in the Dictionary.’
The…
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- Case
- [2018] FCA 1516
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether it was not practicable to serve the documents on the defendant, thereby warranting the grant of an order for deemed service. The court had to consider whether the absence of a designated Central Authority in the defendant's country constituted a sufficient barrier to service to warrant the use of rule 10.48. Additionally, the court needed to determine if the plaintiff had adequately explored other available means of service before seeking the deemed service order.
In its reasoning, the court held that it was not appropriate to grant the order for deemed service under rule 10.48. The court found that the plaintiff had not demonstrated that it was not practicable to serve the documents on the defendant. Instead, the court noted that the plaintiff could have pursued alternative methods of service, including service through diplomatic channels or by engaging a process server in the defendant's country. Consequently, the court dismissed the plaintiff's application for deemed service and scheduled the matter for a case management hearing to determine costs.
The orders of the court were that the prayer for deemed service be dismissed and that the matter be listed for a case management hearing to determine costs. The dismissal of the application for deemed service was based on the court's determination that it was not impracticable to serve the documents on the defendant, and the failure of the plaintiff to explore alternative service methods.
Orders
Orders of the court
1. Prayer 1 of the interlocutory application filed on 27 July 2018 be dismissed.
2. The matter be listed for a case management hearing on 19 October 2018 at 9.30am for determination of costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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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