Nature One Dairy (Hong Kong) Limited v Orient Biotech Sdn BHD

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

COMMERCIAL LIST

S ECI 2025 01040

NATURE ONE DAIRY (HONG KONG) LIMITED	Plaintiff
v
ORIENT BIOTECH SDN BHD	First Defendant
GUAN CHEW LAU	Second Defendant

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JUDGE:	Connock J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 October 2025
DATE OF JUDGMENT:	7 October 2025, ex tempore, revised 17 October 2025
CASE MAY BE CITED AS:	Nature One Dairy (Hong Kong) Limited v Orient Biotech SDN BHD
MEDIUM NEUTRAL CITATION:	[2025] VSC 649

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PRIVATE INTERNATIONAL LAW — Stay application — General principles — Fragmentation of litigation — Forum non conveniens — Supreme Court of Victoria not an inappropriate forum — Foreign law — Presumption that foreign law is the same as the law of the forum — Displacing the presumption — Clearly inappropriate forum test — No obligation on plaintiff to allege foreign law — Regie Nationale Des Usines Renault SA v Zhang (2002) 210 CLR 491; Palmer v Turnbull [2019] 1 Qd R 286; Damberg v Damberg (2001) 52 NSWLR 492; Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331; Benson v Rational Entertainment Enterprises Ltd (2018) 97 NSWLR 798; Deputy Commissioner of Taxation v Shi (2021) 273 CLR 235.

PRACTICE AND PROCEDURE — Service of originating process — Whether basis for service out of Australia under r 7.02 — Whether basis for service out of Australia under r 7.02(h)(i) — Failure to serve a notice pursuant to r 7.05 — Failure to serve a person out of Australia with a notice in Form 7AAA — Whether second defendant a necessary or proper party within the meaning of r 7.02(h)(i) — Meaning of proper party — Meaning of proper party under r 7.02(h)(i) — Rules 9.02 and 9.06(b) — Permissive joinder of parties under r 9.02 and r 7.02(h)(i) — Maclaine Watson & Co Private Ltd v Bing Chen [1983] 1 NSWLR 163 — Beamer Pty Ltd v Star Lodge Supported Residential Services Pty Ltd (No 1) [2004] VSC 390 — Colosseum Investment Holdings Pty Ltd and Anor v Vanguard Logistics Services Pty Ltd and Ors [2005] NSWSC 803 — Sapphire Group Pty Ltd v Luxotico HK Ltd [2021] NSWSC 589 — Horizon Capital Fund v Insurance Australia Ltd; Horizon Capital Fund v Tokio Marine & Nichido Fire Insurance Co. Ltd [2023] NSWSC 389; Harpur v Levy [2007] 16 VR 587; Madden International Ltd v Lew Footwear Holdings Pty Ltd [2015] VSCA 90; (2015) 50 VR 22; Schib Packaging Srl v Emrich Industries Pty Ltd [2005] VSCA 236; (2005) 12 VR 268; Chickabo Pty Ltd & Ors v Zphere Pty Ltd & Ors (No 2) [2019] VSC 580.

PRACTICE AND PROCEDURE — Application for originating process to be set aside pursuant to r 7.04 — Whether Supreme Court of Victoria an inappropriate forum — Forum non conveniens general principles — Meaning of ‘inappropriate forum’ in r 7.04(2)(b) — Whether ‘inappropriate forum’ means ‘clearly inappropriate forum’ — Whether claim against overseas defendant has insufficient prospects of success to warrant putting the defendant served out of Australia to the time, expense and trouble of defending the claim —Rule 7.04(2)(c) — Applicable test for determining whether a claim has ‘insufficient prospects of success’ within the meaning of r 7.04(2)(c) —Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; Regie Nationale Des Usines Renault SA v Zhang (2002) 210 CLR 491; Republica Democratica de Timor Leste v Lighthouse Corp Ltd [2019] VSCA 290; Incitec Ltd v Alkimos Shipping Corporation & Anor (2004) 138 FCR 496; Agar v Hyde (2000) 201 CLR 552; Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; Rowe v Grunenthal GmbH [2011] VSC 657; Bendigo and Adelaide Bank Limited v Quine (2018) 55 VR 701; Azzi v Fox Fire Security System L.L.C. [2020] NSWSC 331; Shenzhen Xinhe Hongshi Investment and Consultancy Co Ltd v Shandong Ruyi Technology Group Co Ltd [2025] FCA 860.

CONTRACT — Breach of contract — General principles for the tort of inducing breach of contract.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	W Rothnie	Jasper Lawyers
For the First Defendant	C Thomson	Roberts Gray Lawyers
For the Second Defendant	M Harvey KC and L Hamzi	Mills Oakley

TABLE OF CONTENTS

Introduction and summary.............................................................................................................. 1

Materials relied upon........................................................................................................................ 4

Issues raised by the summons........................................................................................................ 6

Order 7 of the Rules – service out of Australia............................................................................ 7

The missing 7AAA Notice issue................................................................................................... 10

Service out of Australia without leave of the Court issue....................................................... 13

Inappropriate forum issue............................................................................................................. 19

..... Mr Lau’s submissions – inappropriate forum........................................................................ 19

..... Plaintiff’s submissions – inappropriate forum....................................................................... 21

..... Principles and observations – inappropriate forum and r 7.04(2)(b) of the Rules............ 23

.............. ‘Clearly inappropriate forum’ and ‘inappropriate forum’ – is there a difference?.. 29

..... Consideration and disposition – inappropriate forum......................................................... 39

Rule 7.04(2)(c) – insufficient prospects of success issue.......................................................... 43

Some further context about the parties’ positions................................................................. 43
The Inducing Breach Claim....................................................................................................... 46
Principles – inducing breach of contract................................................................................. 48
Mr Lau’s submissions – insufficient prospects of success.................................................... 49
Plaintiff’s submissions – insufficient prospects of success................................................... 52
Mr Lau’s oral reply submissions – insufficient prospects of success.................................. 54
Principles and observations – insufficient prospects of success issue................................ 54
Consideration and disposition – insufficient prospects of success issue........................... 56

7AAA Notice – indemnity costs issue......................................................................................... 62

Conclusion and proposed orders.................................................................................................. 64

HIS HONOUR:

Introduction and summary

By his application by summons (Application), the second defendant (Mr Lau) sought, among others, orders against the plaintiff (plaintiff or Nature One) pursuant to r 7.04 of the Supreme Court (General Civil Procedure) Rules 2015 (2015 Rules), as follows:

1) the writ and statement of claim filed 28 February 2025 (Originating Process) be set aside;

2) the service of the Originating Process on Mr Lau be set aside; or

3) the proceeding as against Mr Lau be dismissed or stayed—

on the basis that:

a) Mr Lau was not served with a notice in Form 7AAA in accordance with r 7.05 of the 2015 Rules;

b) service out of Australia of the Originating Process on Mr Lau without leave of the Court was not authorised by r 7.02 of the 2015 Rules;

c) rule 7.04(2)(b) of the 2015 Rules is satisfied because the Court is an inappropriate forum for the trial of the proceeding; and/or

d) rule 7.04(2)(c) of the 2015 Rules is satisfied because the plaintiff’s claim against Mr Lau has insufficient prospects of success to warrant putting Mr Lau to the time, expense and trouble of defending the claim.

To give context to the Application, it is desirable to briefly mention the nature of the claims in the proceeding. The plaintiff commenced this proceeding by writ and statement of claim filed 28 February 2025 against the first defendant (first defendant or Orient Biotech) and Mr Lau. In short, the plaintiff alleges that:

a) the plaintiff and Orient Biotech were parties to a purchase and supply agreement (Agreement) pursuant to which Orient Biotech agreed to manufacture for supply to the plaintiff processed milk powder products, including the ‘Ripple 4D Joint Care Goat’s Milk Powder’ (Ripple Powder); and

b) Orient Biotech breached the Agreement by, among other things, manufacturing for another customer a goats milk powder known as the ‘Raku 50+ Goats Milk Powder’ (Raku 50+ Powder).

The Raku 50+ Powder is alleged to have the same, or substantially the same, formula or recipe as the Ripple Powder and be directed to the same health and well-being attributes.

As against Mr Lau, the plaintiff alleges that Mr Lau induced, procured or directed the breaches of the Agreement by Orient Biotech. The plaintiff seeks damages or, alternatively, an account of profits or, alternatively, equitable compensation, together with interest, from each of Orient Biotech and Mr Lau.

The plaintiff is a Hong Kong company and Orient Biotech is a Malaysian company. In 2022, Mr Lau’s company sold a milk powder business to the plaintiff and Mr Lau was subsequently employed by the plaintiff as its regional director in Hong Kong from 1 June 2022 until about 26 April 2023, when the plaintiff terminated his employment.

On 11 March 2025, Orient Biotech filed an unconditional appearance. On 16 April 2025, Mr Lau filed a conditional appearance which, among other things, recorded Mr Lau’s address to be a specified address in Singapore.

Although the Application was made and filed pursuant to ord 7 of the 2015 Rules, on 8 September 2025 the Supreme Court (General Civil Procedure) Rules 2025 (Vic) (2025 Rules) came into effect and, by reason of the operation of r 1.05(1) of the 2025 Rules, the 2025 Rules apply to every civil proceeding commenced in the Court whether before, on, or after the 8 September 2025 commencement date. Further, r 1.05(3) of the 2025 Rules provides that the revocation of the 2015 Rules does not affect anything done or omitted to be done in a pending proceeding and, except as provided in Part 2 of the 2025 Rules, anything so done or omitted is taken to have been done or omitted under the 2025 Rules. Consequently, on and from 8 September 2025 the Application proceeded on the basis that the orders were sought pursuant to r 7.04 of the 2025 Rules, which is in identical terms to r 7.04 of the 2015 Rules.[1] Unless otherwise stated, in the balance of these reasons the term Rules refers to the 2015 Rules or the 2025 Rules as applicable.
[1]Relevantly for aspects of the reasons that follow, it is also to be noted that the terms of ord 7 and ord 9 of the 2025 Rules are in the same terms as ord 7 and ord 9 of the 2015 Rules.

The hearing of the Application proceeded before me on 7 October 2025 (Hearing), with Mr Lau represented by Mr Harvey of senior counsel, who appeared with Ms Hamzi of counsel, and the plaintiff was represented by Mr Rothnie of counsel. The first defendant was not the subject of the Application and, although Mr Thomson of counsel appeared at the outset of the Hearing, he sought and was granted leave for the first defendant to be excused from the balance of the Hearing.

Prior to the Hearing I had the opportunity to consider all of the written material relied upon, including the various affidavits, written submissions, and bundles of authorities. At the conclusion of oral submissions I stood the matter down until later that day to enable further consideration of the submissions and materials, following which I stated my conclusions and delivered my ruling orally, for the reasons that I said would later be published. These are those reasons.

For the reasons set out below, and as stated when I delivered my oral ruling, I concluded and determined that:

1) Notwithstanding that Mr Lau was not served with a notice in Form 7AAA as required by r 7.05 of the Rules (7AAA Notice), this did not provide a basis for making the orders sought by Mr Lau.

2) As was ultimately acknowledged by Mr Lau, service out of Australia of the Originating Process on Mr Lau was authorised pursuant to r 7.02(h)(i) of the Rules on the basis that he was a proper party to a proceeding properly brought against another person served outside of Australia under another provision of the Rules, being this proceeding brought against the first defendant, Orient Biotech.

3) Mr Lau has not established that this Court is an inappropriate forum for the trial of the proceeding and therefore r 7.04(2)(b) of the Rules is not engaged, and the Court’s discretion to make one or more of the orders sought by the plaintiff on this basis is not enlivened.

4) Mr Lau has established that the inducing breach of contract claim against him (Inducing Breach Claim), being the only claim in the Originating Process brought by the plaintiff against Mr Lau, has insufficient prospects of success to warrant putting Mr Lau to the time, expense and trouble of defending the claim. On that basis the Court should exercise its discretion under r 7.04(2)(c) of the Rules to set aside the Originating Process and its service on Mr Lau.

5) Mr Lau’s oral application that the plaintiff pay Mr Lau’s costs of and incidental to the Application on an indemnity basis up to and including 27 May 2025 should be dismissed, but without prejudice to the rights of the parties to make such further submissions as they may wish to make regarding the costs of the Application more generally.

6) Although my preliminary view is that the costs of and incidental to the Application should follow the event and therefore be paid by the plaintiff to Mr Lau, to be taxed on a standard basis if not agreed, the question of costs should be reserved to a date shortly after the publication of these reasons to enable the parties to make brief submissions regarding costs should they wish to do so.

Materials relied upon

Subject to the qualification referred to in footnote 2 below, Mr Lau relied upon:

1) an affidavit of his solicitor, Benjamin Patrick affirmed 30 April 2025 (Patrick Affidavit);

2) his own affidavits affirmed 4 July 2025 (First Lau Affidavit) and 15 August 2025 (Second Lau Affidavit);[2]
[2]Senior counsel for Mr Lau informed the Court that Mr Lau did not read paragraph 23 of that affidavit, or pages 13–21 of exhibit GCL1 to that affidavit, which had been the subject of objection by the plaintiff. Accordingly, this paragraph and the relevant pages of the said exhibit have not been taken into account.

3) affidavits of Mr Teoh affirmed 6 June 2025 (First Teoh Affidavit) and 14 August 2025 (Second Teoh Affidavit);

4) an outline of written submissions filed 26 May 2025 (Mr Lau’s First Written Submissions);

5) an outline of written submissions filed 22 August 2025 (Mr Lau’s Second Written Submissions);

6) an outline of written submissions in reply filed 12 September 2025 (Mr Lau’s Written Submissions in Reply);

7) the affidavit of Nick Dimopoulos filed by the plaintiff on 29 August 2025 (Second Dimopoulos Affidavit);

8) the affidavit of the plaintiff’s solicitor, Saiyuen Jasper Kwok, affirmed 8 September 2025, filed by the plaintiff (Second Kwok Affidavit); and

9) bundles of authorities provided to the Court on 26 May 2025 and 6 October 2025.

The plaintiff relied upon:

1) the writ and statement of claim;

2) affidavits of the plaintiff’s solicitor, Sai Yuen Jasper Kwok, affirmed 21 May 2025 (First Kwok Affidavit) and 8 September 2025 (Second Kwok Affidavit);

3) affidavits of Nick Dimopoulos affirmed 1 August 2025 (First Dimopoulos Affidavit) and 29 August 2025 (Second Dimopoulos Affidavit);

4) the plaintiff’s written submissions on the directions hearing dated 15 May 2025;

5) an outline of submissions filed 21 May 2025 (Plaintiff’s First Written Submissions);

6) an outline of submissions filed 29 August 2025 (Plaintiff’s Second Written Submissions); and

7) bundles of authorities provided to the Court on 21 May 2025 and 6 October 2025.

The parties’ written submissions were supplemented by oral submissions from counsel for each of the parties, the detail of which is recorded in the transcript and to which I refer, although I will not set them out here.

Issues raised by the summons

Although two of the issues narrowed at or shortly before the Hearing, the issues for determination as raised by the terms of the summons were, in substance, as follows:

1) Whether the 7AAA Notice had been served on Mr Lau as required by r 7.05 of the Rules.

2) Whether service on Mr Lau out of Australia was authorised by r 7.02(h)(i) of the Rules on the basis that he was a proper party to a proceeding properly brought against another party served outside of Australia, namely, this proceeding brought against Orient Biotech.

3) Whether this Court is an ‘inappropriate forum’ for the trial of the proceeding within the meaning of that expression as used in r 7.04(2)(b) of the Rules.

4) Whether the Inducing Breach Claim against Mr Lau has insufficient prospects of success to warrant putting Mr Lau to the time, expense and trouble of defending the claim, and therefore engages r 7.04(2)(c) of the Rules.

5) If one or more of the above contentions is established, whether the Court should exercise its discretion under r 7.04 of the Rules to make one or more of the orders sought by the plaintiff.

As is apparent from the conclusions earlier referred to, a further issue arose for determination during the Hearing as a result of Mr Lau’s oral application for an order that, by reason of the plaintiff’s failure to serve the 7AAA Notice, the plaintiff pay Mr Lau’s costs of and incidental to the Application up to and including 27 May 2025, on an indemnity basis.

Order 7 of the Rules – service out of Australia

Service of an originating process outside of Australia, with or without leave of the Court, is addressed in ord 7 of the 2025 Rules which, as I have said, is in relevantly identical terms to ord 7 of the 2015 Rules.

Rule 7.02 sets out the circumstances in which an originating process may be served out of Australia without leave of the Court, with such circumstances being described in rr 7.02(a)–(s) of the Rules. Rule 7.03(1) of the Rules provides that, in any proceeding when service is not allowed under r 7.02, an originating process may be served out of Australia with leave of the Court, with rr 7.03(2)–(5) dealing with the process by which such an application is to be made and the circumstances in which the Court’s discretion to grant such leave is enlivened.[3]
[3]See r 7.03(5) of the Rules.

Rule 7.04 of the Rules empowers a court, on an application by a person on whom an originating process has been served out of Australia, to make various orders, including orders setting aside the originating process or its service, or dismissing or staying the proceeding against the person served. As stated in r 7.04(2) of the Rules, the circumstances in which the Court’s discretion to so order is enlivened includes where the Court is satisfied:

1) that service out of Australia of the originating process is not authorised by the Rules; or

2) that the Court is an inappropriate forum for the trial of the proceeding; or

3) that the claim has insufficient prospects of success to warrant putting the person served out of Australia to the time, expense and trouble of defending the claim.

Where a person is served with an originating process out of Australia without leave of the Court it must be accompanied by a notice of the kind required by r 7.05 of the Rules in Form 7AAA. Rule 7.05 of the Rules, which is headed ‘Notice to person served out of Australia’, provides as follows:

If a person is to be served out of Australia with an originating process, the person shall also be served with a notice in Form 7AAA informing the person of—
(a)the scope of the jurisdiction of the Court in respect of claims against persons who are served out of Australia; and
(b)the grounds alleged by the plaintiff to found jurisdiction; and
(c)the person’s right to apply for an order setting aside the originating process or its service on the person or dismissing or staying the proceeding.

The Form 7AAA also records that a copy of rr 7.01 to 7.09 of the Rules is to be provided to the person served, and states that the said rules ‘… show the scope of the jurisdiction of the Court in respect of claims against persons who are served out of Australia’.

The history of ord 7 of the Rules was helpfully addressed by Macaulay J in Andrianakis v Uber Technologies (Ruling No 1)[4] and by the Court of Appeal in Uber Australia Pty Ltd v Andrianakis (Uber Australia),[5] to which I refer but will not set out.
[4][2019] VSC 850, [173]–[177], [183]–[210].
[5][2020] VSCA 186, [95]–[129] (Niall, Hargrave and Emerton JJA).

In times past there had been some controversy in the authorities as to whether a plaintiff was required to show a ‘strongly arguable case’ that service out of Australia without leave of the Court was permitted under the relevant rule in ord 7 of the Rules. This was addressed by Elliott J in Lew Footwear Holdings Pty Ltd v Madden International Ltd (Lew Footwear)[6] in circumstances where Elliott J considered himself bound by the Court of Appeal’s decision in Schib Packaging Srl v Emrich Industries Pty Ltd (Schib)[7] to apply the ‘strongly arguable case’ test notwithstanding that Elliott J considered the relevant conclusion in Schib to have been in error. In so doing, his Honour also set out what he considered the correct test should be if he was not bound by the decision in Schib to conclude otherwise.[8]
[6][2014] VSC 320, [118] (Elliott J).
[7](2005) 12 VR 268, [21]–[24] (Charles JA, Ashley JA agreeing).
[8]Lew Footwear [2014] VSC 320, [135] (Elliott J).

This controversy was resolved by the Court of Appeal in the appeal from Elliott J’s decision in Lew Footwear. In Madden International Ltd v Lew Footwear Holdings Pty Ltd (Madden International),[9] Mandie JA (with Beach JA and John Dixon AJA agreeing) endorsed the obiter dictum of Elliott J and determined that the correct test was as described by Elliott J in Lew Footwear, which was in the following terms:[10]

In summary, if I had been at liberty to do so, I would have found the correct approach for the court to take, when an application is made by an Overseas Defendant to set aside the originating process or stay the proceeding, is as follows:
(1) The court must determine whether the subject matter of the proceeding is within r 7.01(1).
(2) The question as to the subject matter of the proceeding, ordinarily, is to be answered by reference to the allegations made in the originating process, plus any evidence beyond the pleaded allegations to the extent that the pleading does not contain allegations necessary to establish the claim is of a requisite kind to satisfy a paragraph or paragraphs of r 7.01(1). (It is possible that the Originating Party must also produce an affidavit or other evidence showing the grounds on which the application is made.)
(3) The court may consider further evidence beyond that referred to in (2) above, directed towards whether the facts as alleged or the additional facts put forward by way of evidence are plainly incorrect.
(4) Save for the circumstances in (3), for the purpose of determining whether or not r 7.01(1) has been complied with, the court should not consider the merits of the claims. If a party demonstrates the subject matter is within the paragraph or paragraphs of r 7.01(1) relied upon, then, prima facie, the party is entitled to proceed with its claims.
(5) Each cause of action must be considered individually, and only those causes of action consisting of subject matter within r 7.01(1) may be continued.
(6) If it has been determined that the claims are of the requisite kind, the court may then, before exercising its discretion, consider whether this court is an inappropriate forum and, where appropriate, consider whether the claims made are futile or have insufficient prospects of success to warrant putting the Overseas Defendant to the time, expense and trouble of defending the claims. The test to be applied is the same as the test applicable in an application for summary judgment.[11]
[9][2015] VSCA 90, [24] (Mandie JA with Beach JA and John Dixon AJA agreeing). See also Yunghanns v Colquhoun-Denvers [2016] VSC 403, [26]–[29] (John Dixon J).
[10]Noting that these decisions were addressing the 2005 Rules, in which r 7.01(1) related to service out of Australia without leave of the court in a manner similar to r 7.02 of the 2015 Rules and the 2025 Rules.
[11]First Reasons [127]–[135] (footnotes omitted).

The missing 7AAA Notice issue

It was not in dispute that the plaintiff failed to serve Mr Lau with a 7AAA Notice at the time the Originating Process was served (or at any later time). As the plaintiff’s solicitor said in the First Kwok Affidavit, this was due to an oversight resulting from an acknowledged absence of knowledge regarding the existence of the notice requirement under r 7.05 of the Rules.

Self-evidently, the requirement to serve a 7AAA Notice serves an important purpose. As Button J observed in Brighton Automotive Holdings Pty Ltd v Honda Australia Pty Ltd (Brighton Automotive),[12] the purpose of the 7AAA Notice includes equipping the person so served with information sufficient to allow the person to decide whether to contest jurisdiction’.[13]
[12](2021) 65 VR 146, [64] (Button J).
[13]Ibid. Button J also decided in that case that the question of the existence of additional grounds for service out of Australia that are not referred to in a 7AAA Notice would be moot where a person served elects not to contest jurisdiction based on the notice. Button J further held that, by contrast, if, as was the case before her Honour, the person does contest jurisdiction based on information received in the notice, then they will not suffer any disadvantage if another ground is added when the contest is live because they have not suffered prejudice by failing to exercise rights that otherwise they might have done due to an omission from the notice.

Subsequent to the filing of the summons, and through the directions hearing held on 16 May 2025, the Plaintiff’s First Written Submissions (filed on 21 May 2025), and the directions hearing held on 27 May 2025, it became clear that the plaintiff relied upon r 7.02(h)(i) of the Rules as authorising the service out of Australia of the Originating Process on Mr Lau and, more specifically, the contention that Mr Lau is a ‘proper party’ to the proceeding against Orient Biotech. Relevantly for present purposes, that rule provides as follows:

7.02 When allowed without leave
An originating process may be served out of Australia without leave in the following cases—
…
(h) when any person out of Australia is—
(i) a necessary or proper party to a proceeding properly brought against another person served or to be served (whether within Australia or outside Australia) under any other provision of these Rules; or …

Although the plaintiff and its solicitor appropriately acknowledged the existence and significance of the material oversight in not serving Mr Lau with a 7AAA Notice, it was submitted that no real prejudice was suffered by Mr Lau, and that the absence of the 7AAA Notice did not provide a sound basis for making any of the orders sought by the plaintiff pursuant to r 7.04 of the Rules. The plaintiff emphasised that Mr Lau’s application contesting the service of the Originating Process out of Australia was proceeding, and that Mr Lau was pursuing the Application on a fully informed basis regarding the plaintiff’s position on service out of Australia.

It was not clear from Mr Lau’s Second Written Submissions whether the absence of the 7AAA Notice was being pressed as a basis upon which the orders sought by Mr Lau should be made. This was clarified with senior counsel for Mr Lau during helpful exchanges at the outset of the Hearing, during which it was initially suggested that the issue was ‘faintly pressed’, which position was then recalibrated and the Court was informed that the 7AAA Notice issue was only to be pressed by Mr Lau in relation to the question of costs.

As I said during the Hearing, in my view this was a responsible and appropriate concession for Mr Lau to make, and no different result would have followed even if the absence of the 7AAA Notice had been pressed by Mr Lau at the Hearing as a substantive basis for making the orders sought. Briefly, and putting the question of costs to one side for the moment,[14] this was because, in the particular circumstances of this case, no real prejudice was ultimately suffered by Mr Lau as a result of the absence of the 7AAA Notice. This was because Mr Lau had been able to, and was, exercising his rights under r 7.04 of the Rules to bring and pursue an application for, among other things, orders setting aside the Originating Process and service on him, including on the basis that Mr Lau was not a ‘proper party’ to the proceeding. So much was common ground and self-evident from Mr Lau’s First Written Submissions on the meaning of the expression ‘proper party’ in r 7.02(h)(i) of the Rules.
[14]Which is addressed later below.

As an aside, I also note that such a conclusion regarding the absence of prejudice is consistent with Button J’s reasoning in Brighton Automotive regarding the absence of prejudice to a person served where an additional ground not referred to in a 7AAA Notice is sought to be relied upon by a plaintiff when resisting an application pursuant to r 7.04 of the Rules by a defendant seeking to set aside service out of Australia.[15]
[15]Brighton Automotive (2021) 65 VR 146, [64] (Button J).

Given that the 7AAA Notice issue was not ultimately pressed, it is not necessary to say anything further about it. However, I add two further observations. First, had the issue been pressed, I would have accepted the plaintiff’s submission that, in the particular circumstances of this case, compliance by the plaintiff with r 7.05 of the Rules should be dispensed with now for then. Second, and as will be seen, Mr Lau also did not ultimately press his contention that service out of Australia on him without leave of the Court was not authorised under the Rules, and he conceded that such service out of Australia was authorised on the basis that he was a ‘proper party’ within the meaning of r 7.02(h)(i) of the Rules.

Service out of Australia without leave of the Court issue

As I have said, the plaintiff contended that Mr Lau was a proper party to this proceeding brought against Orient Biotech, and therefore service out of Australia was authorised by the terms of r 7.02(h)(i) of the Rules. This position was referred to at the directions hearing on 16 May 2025 by counsel for the plaintiff, and during which it became apparent that the ‘proper party’ question was to be a contested issue.

At that time it was thought that the ‘proper party’ issue could be determined separately and quickly, thereby potentially avoiding the need to address the other issues raised in Mr Lau’s summons. Consequently, directions were made for the filing of submissions on the topic, and a hearing of the contested issue was fixed for 27 May 2025. In this context the Court also drew the parties’ attention to a number of authorities regarding the question of who is a ‘proper party’.[16] At the hearing on 27 May 2025, the parties submitted, and I accepted, that, as things had transpired, it was not just, efficient or appropriate for the ‘proper party’ question to be considered separately from the other issues the subject of the Application. Further directions were made for the filing of additional material and submissions in relation to the remaining issues, ultimately leading to the Hearing on 7 October 2025.
[16]These included: Maclaine Watson & Co Private Ltd v Bing Chen [1983] 1 NSWLR 163 (Helsham CJ in Eq); Borch & Ors v Answer Products Inc & Ors [2000] QSC 379 (Holmes J); Beamer Pty Ltd v Star Lodge Supported Residential Services Pty Ltd (No 1) [2004] VSC 390 (Hollingworth J); Colosseum Investment Holdings Pty Ltd and Anor v Vanguard Logistics Services Pty Ltd and Ors [2005] NSWSC 803 (Palmer J); Swindells v Victoria [2012] VSC 457 (Lansdowne AsJ); BY Winddown, Inc v Vautin (2016) 249 FCR 262 (Besanko, Middleton and Griffiths JJ); Russell v Abbey [2018] VSC 259 (Ierodiaconou AsJ); Tiger Yacht Management Ltd v Morris (2019) 366 ALR 410 (McKerracher, Derrington, and Colvin JJ); Binqld Finances Pty Ltd (in liq) v Israel Discount Bank Ltd (No 2) (2020) 384 ALR 148 (Foster J); Sapphire Group Pty Ltd v Luxotico HK Ltd [2021] NSWSC 589 (Rees J); Horizon Capital Fund v Insurance Australia Ltd; Horizon Capital Fund v Tokio Marine & Nichido Fire Insurance Co. Ltd [2023] NSWSC 389 (Darke J).

About three months later Mr Lau’s Second Written Submissions were filed on 22 August 2025 and they contained a footnote[17] stating that Mr Lau’s submission that the plaintiff was not authorised to serve the Originating Process on Mr Lau without leave under r 7.02(h)(i) of the Rules was no longer pressed. Senior counsel for Mr Lau confirmed at the Hearing that this was Mr Lau’s position, and in so doing confirmed that it was conceded by Mr Lau that Mr Lau was a ‘proper party’ to the proceeding brought against Orient Biotech. Senior counsel for Mr Lau also acknowledged and conceded that if the breach of contract claim against Orient Biotech and the Inducing Breach Claim against Mr Lau proceeded separately, common questions of fact and law would arise in each of these claims.
[17]Footnote 1 of Mr Lau’s Second Written Submissions.

As stated during the Hearing, in my view this was an appropriate position for the plaintiff to take in the circumstances. Indeed, had the issue been pressed by Mr Lau, I would have determined that, at the time the Originating Process was served on Mr Lau, service out of Australia without leave was authorised under r 7.02(h)(i) of the Rules on the basis that Mr Lau was a ‘proper’ (but not necessary)[18] party to the proceeding brought against Orient Biotech. Given Mr Lau’s ultimate concession on the issue it is not strictly necessary to address why this is so in further detail. However, because I have stated that I would have determined the issue in favour of the plaintiff if the issue had been pressed, it is desirable that I expose the substance of my reasoning for this conclusion, which I do below.
[18]For a helpful discussion of the meaning of ‘necessary party’ see Chickabo Pty Ltd & Ors v Zphere Pty Ltd & Ors (No 2) [2019] VSC 580 (Sifris J). Note also the appeal at FBR Fund Administration Pty Ltd v Chickabo Pty Ltd [2019] VSCA 314.

First, I refer to my earlier observations above regarding Lew Footwear[19] and Madden International[20] and the applicable test when determining whether service out of Australia without leave is authorised under ord 7 of the Rules.
[19][2014] VSC 320 (Elliott J).
[20][2015] VSCA 90 (Mandie JA, Beach JA and John Dixon AJA agreeing).

Second, with respect to the question under r 7.02(h)(i) of the Rules of whether a person served outside Australia is a ‘proper party’ to a proceeding properly brought against another person served or to be served within or outside Australia under any other provision of the Rules, a review of the authorities reveals that the issue is to be determined by asking whether the person served would be a ‘proper party’ if they were not outside of Australia but were a party served within the jurisdiction.

To the extent that past authorities in Victoria or other jurisdictions have held that the ‘anchor party’ needs to be a party who was served within Australia or Victoria, these determinations have no application to r 7.02(h)(i) in its form in the 2015 Rules or the 2025 Rules. This is because the rule in its 2015 and 2025 form reveals by its terms that the ‘anchor party’ can be another person served or to be served ‘within Australia or outside Australia’. As the authorities reveal, previous forms of this rule, and parallel or equivalent rules in other jurisdictions, expressly required the ‘anchor party’ to be a party who was served within the relevant jurisdiction.[21]
[21]See, for example, the authorities referred to in footnote 16 above.

Rule 9.02 of the Rules provides as follows:

9.02 Permissive joinder of parties
Two or more persons may be joined as plaintiffs or defendants in any proceeding—
(a) where—
(i) if separate proceedings were brought by or against each of them, some common question of law or fact would arise in all the proceedings; or
(ii) all rights to relief claimed in the proceeding (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions; or

(b) where the Court, before or after the joinder, gives leave to do so.

Rule 9.03 provides as follows:

9.03 Joinder of necessary parties
(1)Except by order of the Court or as provided by or under any Act, where the plaintiff claims any relief to which any other person is entitled jointly with the plaintiff—
(a)all persons so entitled shall be parties to the proceeding; and
(b)any person who does not consent to being joined as a plaintiff shall be made a defendant.

(2)Where the plaintiff claims relief against a defendant who is liable jointly with some other person and also liable severally, that other person need not be made a defendant to the proceeding.
(3)Where persons are liable jointly, but not severally, under a contract, and the plaintiff in respect of that contract claims against some but not all of those persons, the Court may stay the proceeding until the other persons so liable are added as defendants.
(4)The Court may make an order under paragraph (1) before or after the non-joinder.

Rule 9.06 is in the following terms:

9.06 Addition, removal, substitution of party
At any stage of a proceeding the Court may order that—
(a) any person who is not a proper or necessary party, whether or not that person was one originally, cease to be a party;

(b) any of the following persons be added as a party—
(i) a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon; or
(ii) a person between whom and any party to the proceeding there may exist a question arising out of, or relating to, or connected with, any claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the proceeding;

(c) a person to whom paragraph (b) applies be substituted for one to whom paragraph (a) applies.

Although the expression ‘proper party’ is not defined in the 2015 Rules (or the 2025 Rules), the expression is used in r 9.06 of the Rules. It was in this context that Hollingworth J addressed the meaning of the expression in Beamer Pty Ltd v Star Lodge Supported Residential Services Pty Ltd(No 1) (Beamer)[22] as follows:
[22][2004] VSC 390 (Hollingworth J).

[21] Rule 9.06(a) provides that at any stage of a proceeding the court may order that “any person who is not a proper or necessary party, whether or not he was one originally, cease to be a party.” A person is a necessary party if the conditions for joinder under r 9.03 are satisfied. A person is a proper party if either:

(a)The conditions for joinder as a party under r 9.02 are satisfied;[23] or
[23]Payne v Young (1980) 145 CLR 609.
(b)The conditions for joinder as a party under r 9.06(b) are satisfied.[24]
[24]NCSC v Monsoon Nominees Pty Ltd (No 3) (1990) 9 ACLC 66.

[22]In the present case, it is not suggested that Mr Mitsios is a necessary party within the meaning of r 9.03. The question therefore becomes whether Mr Mitsios is a proper party.
[23]Rule 9.02(a) permits, but does not require, the joinder of two or more persons as defendants where, if separate proceedings were brought against each of them, some common question of law or fact would arise in all the proceedings and all rights to relief are in respect of, or arise out of, the same transaction or series of transactions. Rule 9.02(b) gives the court a wide discretion to permit the joinder of several defendants even if r 9.02(a) is not satisfied.
[24] Rule 9.06(b) permits, but does not require, any of the following persons to be added as a party:
(i)a person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon; or
(ii)a person between whom and any party to the proceeding there may exist a question arising out of or relating to or connected with any claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the proceeding.[25]

[25][2004] VSC 390, [21]–[24].

Hollingworth J’s statement of principle in Beamer was referred to and applied by the Court of Appeal in Harpur v Levy.[26] It was also followed by Lansdowne AsJ in Swindells v Victoria,[27] and by Ierodiaconou AsJ in Russell v Abbey.[28]
[26](2007) 16 VR 587, 603–604 (Neave JA, with Redlich JA agreeing).
[27][2012] VSC 457, [12]–[13], noting that her Honour did not have the benefit of submissions from counsel on this point.
[28][2018] VSC 259, [21].

Having regard to the above, if the joinder of an overseas party satisfies any of the requirements in rr 9.02(a) or 9.06(b), then the overseas party will be a ‘proper party’ to the proceeding.

Third, as things stand, the claim made against Orient Biotech is for breach of the Agreement and the claim made against Mr Lau is for inducing, procuring or directing Orient Biotech to breach the Agreement. As was understandably accepted by senior counsel for Mr Lau, if the two claims were brought separately there would inevitably be common questions of fact and law arising in each proceeding. That being so, and noting the authorities regarding the meaning of the expression ‘proper party’ referred to above, it is readily apparent that Mr Lau is a proper party to this proceeding brought against Orient Biotech, including within the meaning of that expression as used in r 7.02(h)(i) of the Rules.

It is therefore also apparent that service out of Australia of the Originating Process on Mr Lau without leave of the Court was authorised by r 7.02(h)(i) of the Rules. So, even if Mr Lau had not ultimately conceded that service of the Originating Process out of Australia on Mr Lau without leave was authorised under r 7.02(h)(i) the Rules, I would have concluded that it was so authorised in any event.

Fourth, contrary to aspects of the submissions on the ‘proper party’ issue made in Mr Lau’s First Written Submissions, it is not and was not necessary for the plaintiff to plead or make any allegations regarding the applicable foreign law of the Inducing Breach Claim against Mr Lau in circumstances where the plaintiff is not relying upon any applicable foreign law, noting further that the presumption that the law of the cause is the same as the law of the forum engages in such circumstances.

As to that evidentiary presumption, I refer, for example, to the observations in: Neilson v Overseas Projects Corporation of Victoria Ltd (Neilson);[29] Damberg v Damberg;[30] Talwar v Sarai;[31] Secretary, Dept of Social Services v Vader;[32] Royal Caribbean Cruises Ltd v Rawlings;[33] Benson v Rational Entertainment Enterprises Ltd;[34] and Deputy Commissioner of Taxation v Shi.[35] As to the absence of the need for a plaintiff to plead or make allegations regarding foreign law in circumstances where foreign law is not relied upon by a plaintiff, I refer, for example, to the decisions in: Regie Nationale des Usines Renault SA v Zhang;[36] Palmer v Turnbull;[37] and Neilson.[38]
[29](2005) 223 CLR 331, 370 (Gummow and Hayne JJ).
[30](2001) 52 NSWLR 492, [144]–[162] (Haydon JA, Spigelman and Sheller JJA agreeing).
[31][2018] FamCAFC 152, [40]–[48] (Ainslie-Wallace, Ryan and Aldridge JJ).
[32](2024) 302 FCR 352, [46] (Perry J, Charlesworth and Jackson JJ agreeing).
[33](2022) 107 NSWLR 51, [21] (Meagher JA, Bell P and Leeming JA agreeing).
[34](2018) 97 NSWLR 798, [103]–[104] (Leeming JA, Beasley P and Emmett AJA agreeing).
[35](2021) 273 CLR 235, [32] (Gordon J).
[36](2002) 210 CLR 491, [67]–[70] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[37][2019] 1 Qd R 286, [19]–[27] (Brown J, Fraser and Gotterson JJA agreeing).
[38](2005) 223 CLR 331, [1] (Gleeson CJ).

In this context it is also to be noted that the onus of alleging and proving foreign law rests upon the party wishing to allege that the foreign law is different from the lex fori, even if this party is the defendant.[39] As Huxley JA succinctly observed in Walker v WA Pickles Pty Ltd,[40] until the issue of foreign law is raised, a plaintiff may ignore foreign law and rely on the presumed identicality of foreign and local law. That said, it has been held that, consistent with the rules of pleading under civil procedure rules, although a plaintiff is not obliged to identify the applicable foreign law in a pleading when it is not being relied upon, the party may be required to provide sufficient information or particulars to enable the opposing party to consider the question of any applicable foreign law.[41]
[39]Davies M, Bell AS, Brereton PLG and Douglas M, Nygh’s Conflict of Laws in Australia (10^th ed, LexisNexis Butterworths, 2020), [17.40]. See also Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483, [183]–[188] (Bromberg J).
[40][1980] 2 NSWLR 281, 285–286.
[41]See Spotwire Pty Ltd v Visa International Service Assn (No 2) [2004] FCA 571, [94]–[95] (Bennett J) and Walker v WA Pickles Pty Ltd [1980] 2 NSWLR 281, 286 (Huxley JA).

Inappropriate forum issue

Mr Lau contended that the Court should make orders under r 7.04 of the Rules on the basis that this Court is an ‘inappropriate forum’ for the trial of the proceeding against Mr Lau within the meaning of that expression in r 7.04(2)(b) of the Rules, and the plaintiff contended otherwise. Given my conclusions that the Inducing Breach Claim has insufficient prospects of success and that the Originating Process and its service should be set aside, it is not strictly necessary to determine this issue. However, in deference to the submissions made by the parties, I do so below.

Mr Lau’s submissions – inappropriate forum

Mr Lau’s Second Written Submissions summarised the principles regarding the Court’s discretion to dismiss proceedings on the basis of forum non conveniens with reference to, among others, the principles articulated by Deane J in Oceanic Sun Line Special Shipping v Fay[42] and the majority of the High Court in Voth v Manildra Flour Mills Pty Ltd (Voth).[43] Having regard to those considerations, Mr Lau submitted that the Court was a clearly inappropriate forum ‘given the lack of any actual connection of the parties and the underlying events said to give rise to these proceedings to Victoria’.[44]
[42](1988) 165 CLR 197, 247–248.
[43](1990) 171 CLR 538.
[44]Mr Lau’s Second Written Submissions, [8].

Mr Lau pointed to the following:

1) None of the parties are domiciled in Australia. The plaintiff is domiciled in Hong Kong, Orient Biotech in Malaysia, and Mr Lau in Singapore.

2) Mr Lau was not in Australia at any time period relevant to the plaintiff’s claim.[45]
[45]Referring to the First Lau Affidavit and the Patrick Affidavit.

3) The transactions relevant to this proceeding have no connection to Australia.

4) The law applicable to any claim of inducing a breach of contract is not Australian law but rather the law of the place in which the alleged tort occurred, such place remaining unknown on the plaintiff’s pleaded case.

5) Mr Lau is not a party to the Agreement and never agreed to submit to the jurisdiction of the Victorian courts.

6) There are no apparent legitimate and substantial juridical advantages to the plaintiff proceeding against Mr Lau in Victoria.

During oral submissions senior counsel for Mr Lau confirmed that Mr Lau’s Second Written Submissions were relied upon in connection with the inappropriate forum issue, but commendably did not seek to repeat the submissions there raised.

Plaintiff’s submissions – inappropriate forum

The plaintiff submitted that Mr Lau must satisfy the Court that this Court is a clearly inappropriate forum for the claim against Mr Lau.[46] It was emphasised that the test is ‘a stringent one’ with reference made to the decision of the Victorian Court of Appeal in Republica Democratica de Timor Leste v Lighthouse Corp Ltd,[47] in which Warren CJ and Nettle JA held:

[44]The test is a stringent one that requires the party seeking a stay to establish not only that the local forum is inappropriate, but that it is clearly so.[48] This indicates that ‘something more than merely balancing relevant considerations is required’.[49]

[46]Citing, among others, Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; Puttick v Tenon Ltd (2008) 238 CLR 265, [27] (French CJ, Gummow, Hayne and Kiefel JJ), [43] (Heydon and Crennan JJ); Republica Democratica de Timor Leste v Lighthouse Corp Ltd [2019] VSCA 290, [40] (Warren CJ and Nettle JA); Spiliada Maritime Corporation v Cansulex Ltd [1987] 1 AC 460, 477–478, 482–484.

[47][2019] VSCA 290.

[48]Murakami v Wiryadi (2010) 268 ALR 377, 388, [53] (Spigelman CJ) (‘Murakami’).

[49]Ibid.

In contending that Mr Lau failed to establish that the Court was a clearly inappropriate forum, the plaintiff submitted as follows:

1) The liability (or otherwise) of Orient Biotech for breach of the Agreement is also a necessary and key element of the claim against Mr Lau.[50] As a result, there are common factual issues to the claim against Orient Biotech and Mr Lau, and both causes of action involve the same terms of the same Agreement.
[50]Referring to Sandvik Intellectual Property AB v Quarry Mining & Construction Equipment Pty Ltd [2016] FCA 236; 118 IPR 421, [271] (Jessup J).

2) If separate proceedings were brought against each of the defendants, neither the plaintiff nor Mr Lau would be bound by the result in the proceeding against the other defendant.

3) The plaintiff and Orient Biotech have determined that the Agreement is to be governed by the laws of Victoria. If separate additional proceedings were brought in another forum, the terms of the Agreement may fall to be construed under the laws of that forum and it would not be productive of confidence in the administration of justice if the same contract were interpreted differently in different proceedings and potentially deprive the parties to the Agreement of the protections which they had bargained for.

4) This proceeding has been properly constituted against Orient Biotech and preparation of witness outlines is advanced. Requiring the proceeding to be brought against Mr Lau in a different jurisdiction would substantially increase the costs of at least the plaintiff.

5) Even accepting the proposition that Mr Lau’s liability could fall to be determined by the lex loci delicti, the possibility of two Courts making determinations on the same facts and terms of the Agreement ‘creates a real and substantial risk of inconsistent decisions against which the law has “a deep and strong antipathy”’.[51]
[51]Citing Donoghue v Armco Inc [2001] UKHL 64; [2002] 1 All ER 749 (House of Lords), [60]–[61] (Lord Scott of Foscote).

6) Mr Lau has not identified a clearly more appropriate forum, or any other appropriate forum.

7) To the extent that the terms of the Agreement fall to be interpreted in accordance with the laws of Victoria, there are considerable efficiencies in all aspects of the dispute being heard and determined by this Court, and courts in Victoria are best placed to pronounce on the laws of Victoria.

8) The inconvenience to Mr Lau of litigating in Victoria is not of the same order as in former times.

9) The parties are located in three different jurisdictions: Malaysia, Hong Kong, and Singapore. Identifying one of those three jurisdictions as the forum will involve two other parties, and their respective witnesses, being involved in foreign proceedings. This will be in addition to the plaintiff and Orient Biotech being involved in this proceeding in Victoria.

As recorded in the transcript, aspects of these and related matters were referred to, emphasised, and addressed by counsel for the plaintiff during oral submissions, to which I refer but will not set out here.

Principles and observations – inappropriate forum and r 7.04(2)(b) of the Rules

As earlier noted, r 7.04 of the Rules provides:

(1)On application by a person on whom an originating process has been served out of Australia, the Court may by order set aside the originating process or its service on the person or dismiss or stay the proceeding.
(2)Without limiting paragraph (1), the Court may make an order under this Rule if satisfied—
…
(b) that the Court is an inappropriate forum for the trial of the proceeding…

Putting to one side for the moment the terms of r 7.04(2)(b) of the Rules, it is well established in Australia that there is a difference between Australia and the United Kingdom (and many other jurisdictions) regarding the test to be applied when considering forum non conveniens issues. In Australia, at common law it is the ‘clearly inappropriate forum’ test addressed by the High Court in Voth that has been adopted. As I observed in Urban Moto Imports Pty Ltd v KTM AG & Ors (Urban Moto),[52] relevant principles regarding the clearly inappropriate forum test were helpfully set out by Almond J in Lighthouse Corporation Limited & Anor v Republica Democratica de Timor Leste & Anor:[53]
[52][2021] VSC 616, [35]–[39] (Connock J).
[53][2019] VSC 278, [60]–[67] (Almond J).

Applicable principles
60A party who has regularly invoked the jurisdiction of a competent court has a prima facie right to insist upon the exercise of the jurisdiction and have the claim heard and determined.[54]
[54]Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197, 241, 243 (Deane J) (‘Oceanic’).
61This prima facie right may be displaced when it can be demonstrated that the local forum is a clearly inappropriate forum for the determination of the claim.
62Jurisdiction to stay or dismiss a proceeding should only be exercised ‘with great care’ or ‘extreme caution’.[55]
[55]Oceanic, 244 (Deane J); Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, 554 (Mason CJ, Deane, Dawson and Gaudron JJ) (‘Voth’).
63The power to stay proceedings which have been regularly commenced on inappropriate forum grounds is to be exercised in accordance with ‘the general principle empowering a court to dismiss or stay proceedings which are vexatious or oppressive or an abuse of process’.[56]
[56]Oceanic, 242 (Deane J); see also Voth, 554 (Mason CJ, Deane, Dawson and Gaudron JJ).
64Further, ‘[t]he mere fact that the balance of convenience favours another jurisdiction or that some other jurisdiction would provide a more appropriate forum does not justify the dismissal of the action or the grant of a stay.’[57]
65As the plurality observed in Voth,
the “clearly inappropriate forum” test is similar to and, for that reason, is likely to yield the same result as the “more appropriate forum” [Spiliada] test in the majority of cases. The difference between the two tests will be of critical significance only in those cases … in which it is held that an available foreign tribunal is the natural or more appropriate forum but in which it cannot be said that the local tribunal is a clearly inappropriate one.[58]

66The availability of relief in a foreign forum will always be a relevant factor in deciding whether or not the local forum is a clearly inappropriate one. A decision on this question does not turn upon an assessment of the comparative procedural or other claims of the foreign forum, nor does it require ‘the formation of subjective views about either the merits of that forum’s legal system or the standards and impartiality of those who administer it.’[59]
67As to the proper approach to be taken in dealing with forum non conveniens applications, the majority of the High Court in Voth said that the judge should consider the materials, the law and submissions in the quiet of judicial chambers without expense to the parties, and that ordinarily it would be unnecessary to do more than briefly indicate that having examined the material in evidence and having taken account of the competing written and oral submissions, the primary judge is of the view that the proceedings should or should not be stayed on forum non conveniens grounds.[60] I propose to adopt that approach in this case.

[57]Voth, 554 (Mason CJ, Deane, Dawson and Gaudron JJ); Oceanic, 248 (Deane J) (cf Spiliada Maritime Corp v Cansulex Ltd [1987] 1 AC 460, 478.

[58]Voth, 558 (Mason CJ, Deane, Dawson and Gaudron JJ).

[59]Voth, 558 (Mason CJ, Deane, Dawson and Gaudron JJ).

[60]Voth, 565 (Mason CJ, Deane, Dawson and Gaudron JJ), citing the advice contained in the speech of Lord Templeman in Spiliada.

On appeal this formulation was not the subject of criticism by the parties or the court, although it is useful also to extract the Court of Appeal’s truncated recitation of key principles underlying the forum non conveniens inquiry, which was in the following terms:[61]

40In Voth v Manildra Flour Mills Pty Ltd (‘Voth’),[62] the High Court held that a defendant will ordinarily be entitled to a permanent stay of proceedings instituted against it and regularly served upon it within the jurisdiction, if the defendant persuades the local court that, having regard to the circumstances of the particular case, and the availability of an alternative foreign forum to whose jurisdiction the defendant is amenable, the local court is a ‘clearly inappropriate forum’ for determination of the dispute.[63]
41The principle is a manifestation of the broader power reposed in a superior court to stay proceedings if they are oppressive, vexatious or an abuse of process, or are productive of injustice in the particular case.
42In many cases, the Court said, the application of the ‘clearly inappropriate’ test — which focuses on the inappropriateness of the local forum, rather than on the appropriateness of any other forum — is likely to yield the same result as an inquiry as to which of the two fora is the ‘more appropriate forum’.[64] Further, the inquiry will inevitably involve an assessment of the relevant ‘connecting factors’, including the nature of the dispute and cause of action, the law to be applied, the location of the cause and the location of witnesses.
43The fact that the law of the forum provides the governing law of the cause may be important, but is not necessarily determinative. So much follows from the choice of law rules which permit a local court to apply the law of a foreign jurisdiction. It may be that the existence of a much stronger connection with a foreign forum may justify a conclusion that the local court is clearly inappropriate notwithstanding that the law of the cause may not be the law of the foreign forum.

44The onus remains on the party seeking the stay to establish that the chosen forum is clearly inappropriate. The test is a stringent one that requires the party seeking a stay to establish not only that the local forum is inappropriate, but that it is clearly so.[65] This indicates that ‘something more than merely balancing relevant considerations is required’.[66]

[61]Republica Democratica de Timor Leste v Lighthouse Corp Ltd [2019] VSCA 290 (Maxwell P, Niall and Emerton JJA).

[62](1990) 171 CLR 538.

[63]Puttick v Tenon Ltd (2008) 238 CLR 265, 276, [27] (French CJ, Gummow, Hayne and Kiefel JJ) (‘Puttick’), citing Voth (1990) 171 CLR 538, 549, 565.

[64]Voth (1990) 171 CLR 538, 558 (Mason CJ, Deane, Dawson and Gaudron JJ).

[65]Murakami v Wiryadi (2010) 268 ALR 377, 388 [53] (Spigelman CJ) (‘Murakami’).

[66]Ibid.

As emphasised by Deane J in Oceanic Sun Line Special Shipping v Fay,[67] the terms ‘oppressive’ and ‘vexatious’ are not to be narrowly construed or applied, and ‘on that approach, “oppressive” should, in this context, be understood as meaning seriously and unfairly burdensome, prejudicial or damaging while “vexatious” should be understood as meaning productive of serious and unjustified trouble and harassment’.[68]
[67](1988) 165 CLR 197, 247–248 (Deane J).
[68]See also, for example, Henry v Henry (1996) 185 CLR 571, 587 (Dawson, Gaudron, McHugh and Gummow JJ).

Connecting factors relevant to the clearly inappropriate forum inquiry have been addressed in many cases and have included, for example: convenience and expense; the location of evidence; the governing law; the parties’ places of residence or business; the location of witnesses; the existence or otherwise of legitimate juridical advantages; where relevant acts and omissions occurred; fragmentation of litigation; and multiplicity of proceedings.

With regard to the adverse consequences of fragmentation and multiplicity of proceedings, in Incitec Ltd v Alkimos Shipping Corporation & Anor (Incitec), Allsop J addressed these matters in strong language when considering whether to stay proceedings brought in defiance of an exclusive jurisdiction clause:[69]
[69](2004) 138 FCR 496; [2004] FCA 698, [52]–[63] (Allsop J). Cited with approval in Vautin v BY Winddown, Inc (No 2) [2016] FCA 1235, [53] (Rares J); Babcock & Brown DIF III Global Co-Investment Fund, LP & Anor v Babcock & Brown International Pty Limited & Ors [2016] VSC 623, [100(3)] (Hargrave J); Kraft Foods Group Brands LLC v Bega Cheese Ltd (2018) 358 ALR 1, [105] (O’Callaghan J); Urban Moto Imports Pty Ltd v KTM AG & Ors [2021] VSC 616, [64] (Connock J).

[52]In The ‘El Amria’ [1982] 1 Lloyd’s Rep 119, the cargo interests who had agreed to an exclusive jurisdiction clause with the carrier in a bill of lading also sued the relevant Harbour Board which was not bound by the clause. This arose from the carrier’s plea that the deterioration of the cargo was caused because of the unreasonably slow date of discharge. Brandon LJ (as he then was) said at 128:
I agree entirely with the learned Judge’s view on that matter, but would go rather further than he did in the passage from his judgment quoted above. By that I mean that I do not regard it merely as convenient that the two actions, in which many of the same issues fall to be determined, should be tried together; rather that I regard it as a potential disaster from a legal point of view if they were not, because of the risk inherent in separate trials, one in Egypt and the other in England, that the same issues might be determined differently in the two countries. See as to this Halifax Overseas Freighters Ltd v Rasno Export; Technoprominport; and Polskie Linie Oceaniczne PPW (The Pine Hill) [1958] 2 Lloyd’s Rep 146 and Taunton-Collins v Cromie & Others [1964] 1 WLR 633.
[emphasis added]

A stay was refused.
[53]These views of Brandon LJ were not merely based on, or expressed as, questions of convenience. They were an expression of the deep and strong antipathy of courts for the promotion of circumstances allowing for inconsistent curial approaches to the same dispute. This can be seen in an examination of the judgment of McNair J in The ‘Pine Hill’ [1958] 2 Lloyd’s Rep 146, 150–52 where McNair J spoke of the judicial system being brought into disrepute by the possibility of conflicting findings. This passage from the judgment of McNair J resonated in the reasons of Lord Denning MR in Taunton-Collins v Cromie [1964] 1 WLR 633, 636.
…
[57]All these cases were reviewed by the House of Lords in Donohue v Armco. Lord Bingham also referred to the procedurally complex decision of Rix J in Crédit Suisse First Boston (Europe) Ltd v MLC (Bermuda) Ltd [1999] 1 Lloyd’s Rep 767, where orders were made which contemplated fragmented litigation. Lord Bingham noted, however, at [2002] 1 Lloyd’s Rep at 434–35, that it was not possible for Rix J to make an order ensuring a trial in one forum. At 436 Lord Bingham described the splitting of litigation as of “great weight”. His Lordship said at 436:
A procedure which permitted the possibility of different conclusions by different tribunals, perhaps made on different evidence, would in my view run directly counter to the interests of justice.
…
In my opinion, and subject to an important qualification, the ends of justice would be best served by a single composite trial in the only forum in which a single composite trial can be procured, which is New York, and accordingly I find strong reasons for not giving effect to the exclusive jurisdiction clause in favour of Mr Donohue.

[62]The very existence of the possibility, if not probability, of duplicated litigation is, on modern authority of the highest persuasive stature a cogent consideration in assessing the effect of an exclusive jurisdiction clause. This is for good and powerful reasons based on the cost and inconvenience of litigation and the desire not to foster the circumstances of courts coming to different conclusions about the same facts on perhaps different, or even the same, evidence. If I may be permitted to say, respectfully, the views of judges of such eminence and experience as McNair J, Lord Denning, Lord Brandon, Colman J, Rix J and the Law Lords in Donohue v Armco are overwhelmingly persuasive of the great importance of this consideration. Related to it, but a distinct and equally powerful consideration in the administration of justice, is the inability to be certain that third parties, whether as witnesses or as parties, will not become involved in the London proceedings as well as the Australian proceedings at duplicated inconvenience and cost. Mr Nell says that the London proceedings will only be between ASC and Hyundai. That might be able to be said with confidence if it were to be an arbitration. It cannot be said with any confidence if curial proceedings are brought. I cannot be clear who might be joined, by ASC or Hyundai, depending on the progress and flow of proceedings there and here. The promotion of duplication may tend to encourage parties to view the interconnection and overlap of the cases as a field of potential tactical advantage. That is something which should be avoided and which can be avoided if it is possible to have all aspects of the dispute resolved in one convenient location.
[63]These considerations are not conclusive but they are very persuasive.

Although the question before the court in Incitec was whether to enforce an exclusive jurisdiction clause, the observations regarding litigation fragmentation also resonate when considering if Australia is a clearly inappropriate forum for the trial of a proceeding.[70]
[70]Noting that while there may be an overlap of some relevant considerations when undertaking the analysis, the tests and approach are different in each case.

Where the applicable law is foreign law, this will typically be a material — though not decisive — consideration in determining whether the Court should hear the matter. In Voth, the High Court held:[71]

That is not to deny that, in deciding whether it has been established that the chosen forum is clearly inappropriate, the extent to which the law of the forum is applicable in resolving the rights and liabilities of the parties is a material consideration. In this respect Gaudron J stated in Oceanic Sun, as a qualification to her endorsement of the view of Deane J, that the selected forum should not be seen as an inappropriate forum if it is fairly arguable that the substantive law of the forum is applicable in the determination of the rights and liabilities of the parties. We agree with Gaudron J that the substantive law of the forum is a very significant factor in the exercise of the court’s discretion, but the court should not focus upon that factor to the exclusion of all others.

[71](1990) 171 CLR 538, 588 (Mason CJ, Deane, Dawson and Gaudron JJ).

Similarly, in Puttick v Tenon Ltd, a later composition of the High Court stated:[72]

If the tort which Mrs Puttick alleges Tenon committed against her late husband was shown not to be a foreign tort, Tenon’s claim to a stay of proceedings would have been greatly weakened. But it by no means follows that showing that the tort which is alleged is, or may be, governed by a law other than the law of the forum demonstrates that the chosen forum is clearly inappropriate to try the action. The very existence of choice of law rules denies that the identification of foreign law as the lex causae is reason enough for an Australian court to decline to exercise jurisdiction. …

[72](2008) 238 CLR 265 [31] (French CJ, Gummow, Hayne and Kiefel JJ).

The reason for foreign law being a material consideration has been said to be the introduction of ‘additional levels of complexity, expense and uncertainty together with the risk of error in the application of foreign law’.[73]
[73]Murakami v Wiryadi and Ors [2010] NSWCA 7, [150] (Spigelman CJ, McColl and Young JJA agreeing).

With respect to the analysis when dealing with exclusive jurisdiction clauses, I refer to, without repeating, the principles and observations set out in Urban Moto[74] on the topic.
[74][2021] VSC 616, [19]–[34] (Connock J).

It is also to be remembered in this context that each case is to be decided having regard to its particular facts and circumstances, and there is limited assistance to be gained from a review of the particular facts in other cases. In Voth, this was underscored by the observation that a court ‘… should not be burdened by unhelpful references to other decisions on other facts’.[75]
[75](1990) 171 CLR 538, 565 (Mason CJ, Deane, Dawson and Gaudron JJ).

‘Clearly inappropriate forum’ and ‘inappropriate forum’ – is there a difference?

It was apparent from the written submissions of each of the parties that they had made submissions based upon the ‘clearly inappropriate forum’ test in Voth, which remained the common position at the Hearing. The difference in language, and in particular the absence of the word ‘clearly’ in r 7.04(2)(b) of the Rules, was not addressed in the parties’ written or oral submissions and, following enquiry from the Bench, counsel for each of the parties submitted without reference to authority that the Court should proceed on the basis that the expression ‘inappropriate forum’ in the Rules is to be construed as meaning ‘clearly inappropriate forum’.

A review of many authorities addressing forum non conveniens in this context reveals that the issue may be a little more nuanced. For present purposes, however, it is not necessary to analyse the topic in great detail given that the conclusion I have reached on this ground would be the same if it was the case that the hurdle of ‘inappropriate forum’ in r 7.04(2)(b) of the Rules is, to some degree, lower than the hurdle of the ‘clearly inappropriate forum’ test in Voth.

That said, given the parties’ submissions and approach, and the discussion in the authorities referred to below, in my view it is appropriate for me to proceed on the basis that r 7.02(b) of the Rules requires the application of the ‘clearly inappropriate forum’ test in Voth in the same way. I draw attention to some of the observations that have been made in commentary and the authorities regarding this issue below.

The authors of Civil Procedure Victoria state:[76]

Rule 7.04(2)(b) provides that where originating process is served out of Australia, the court may set aside the originating process or its service or stay the proceeding on the ground that Victoria is not an appropriate forum for the trial. An order under this provision will be made on the application of the defendant. The defendant carries the burden of persuading the court to make an order.
…
In Agar v Hyde (2000) 201 CLR 552; 173 ALR 665 at 680; [2000] HCA 41, the High Court, although it was not necessary for it to consider, raised the question whether a rule such as r 7.04(2)(a) prescribed a different test for determining an objection of inappropriate forum from that developed at common law in Australia… In Gutnick v Dow Jones & Co Inc [2001] VSC 305 at [102]–[104], Hedigan J concluded that the words “Victoria is not a convenient forum for the trial of the proceeding” in r 7.05(2)(b) conveyed the meaning and substance of the concept of forum non conveniens as determined by the High Court. That is, the test was whether the court selected was a “clearly inappropriate forum”.
The rule of court in New South Wales corresponding to r 7.04(2)(b), Supreme Court Rules 1970 Pt 10 r 6A(2)(b) (see now Uniform Civil Procedure Rules 2005 (NSW) r 11.7(2)(b)), provides that the Supreme Court may set aside service if the court is “an inappropriate forum for the trial of the proceedings”. The words “inappropriate forum” mean “clearly inappropriate forum” as explained in Voth v Manildra Flour Mills Pty Ltd, above.

[76]Williams, Civil Procedure Victoria, [I 7.04.30].

In Regie Nationale Des Usines Renault SA v Zhang (Zhang),[77] the High Court considered whether the expression ‘this Court is an inappropriate forum for the trial of the proceedings’, found in Pt 10, r 6A(2) of the Supreme Court Rules 1970 (NSW), was equivalent to the ‘clearly inappropriate forum’ test at common law. The plurality held:[78]

[22]The Rules relate to a judicial discretion to decline to exercise jurisdiction. Such a discretion is to be exercised in accordance with principle. The principles to be applied are encompassed within the doctrine developed by judicial decision. They are not extraneous to it.
[23]The apparent objective of the inclusion in the Rules of provisions specifically authorising orders declining the exercise of jurisdiction on the ground that the Supreme Court is an inappropriate forum was to give explicit recognition to the judge-made doctrine in the procedures established by the Rules. It is by reference to authoritative Australian decisions from time to time expounding that doctrine that there is to be found the meaning of the expression in par (b) of Pt 10, r 6A(2): ‘‘that this Court is an inappropriate forum for the trial of the proceedings.’’
[24]The expression ‘‘inappropriate forum’’ in par (b) of Pt 10, r 6A(2) is less emphatic than the expression ‘‘clearly inappropriate forum’’, the latter being the term adopted in Voth to determine whether an Australian court should decline to exercise its jurisdiction. The formulation in Voth, as Spigelman CJ pointed out in James Hardie Industries Pty Ltd v Grigor,[79] was adopted in preference to the ‘‘clearly more appropriate forum’’ test favoured in the United Kingdom. Thus, it should at once be noted that a court is not an inappropriate forum merely because another is more appropriate.
[25]Because a court’s power to stay proceedings is an aspect of its inherent or implied power to prevent its own processes being used to bring about injustice, the same concepts and considerations necessarily inform the test of ‘‘inappropriate forum’’ in par (b) of Pt 10, r 6A(2) as inform the ‘‘clearly inappropriate forum’’ test adopted in Voth. And because the ultimate consideration is the prevention of injustice, they inform it in the same way. …

[77]Regie Nationale Des Usines Renault SA v Zhang (2002) 210 CLR 491.

[78]Regie Nationale Des Usines Renault SA v Zhang (2002) 210 CLR 491 [22]–[25] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

[79](1998) 45 NSWLR 20 at 28.

At first instance, Hedigan J in Gutnick v Dow Jones[80] concluded that the expression in r 7.05(2)(b) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (a predecessor to r 7.04(2)(b) of the Rules that used the expression ‘not a convenient forum’) required the court to apply the Voth ‘clearly inappropriate forum’ test. On appeal, in Dow Jones & Co Inc v Gutnick (Dow Jones), the plurality of the High Court[81] did not comment directly on the equivalence of the statutory language and the Voth ‘clearly inappropriate forum’ test, although it is apparent that they applied the Voth test when upholding Hedigan J’s decision to refuse the stay of the proceeding on the ground that the applicant/defendant had not shown that Victoria was a ‘clearly inappropriate forum’.[82]
[80][2001] VSC 305, [99]–[104] (Hedigan J).
[81]Gleeson CJ, McHugh, Gummow and Hayne JJ.
[82](2002) 210 CLR 575 [47]–[48] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

Kirby J stated that the majority decision in Zhang (with which he disagreed) stood for the proposition that the ‘clearly inappropriate forum’ test was to apply when considering the ‘inappropriate forum’ test under Pt 10, r 6A(2) of the Supreme Court Rules 1970 (NSW) and r 7.05(2)(b). His Honour observed:[83]

[156]The appellant finally challenged the primary judge’s conclusion concerning the provision of relief pursuant to r 7.05(2)(b). That rule permits the Supreme Court of Victoria to stay proceedings such as the present on the ground ‘that Victoria is not a convenient forum for the trial of the proceeding’.
[157]I have made it clear in earlier cases that I prefer the expression of the common law on this question in the terms adopted by the House of Lords in England in Spiliada Maritime Corp v Cansulex Ltd.[84] In my view, the issue is (as the terms of the Victorian rule suggest) whether the court in which the proceedings are pending is the natural forum for the trial or whether there is another forum that is ‘more appropriate’.[85] However, although the formulation by the House of Lords has found favour in most Commonwealth jurisdictions, and is more harmonious with the rules of public international law respectful of comity between nations and their courts, I must accept that this Court has adopted an approach more defensive of the exercise of properly invoked jurisdiction by Australian courts.[86]
[158]In my view it is a mistake to re-express the rule, having been made under statutory power,[87] in terms of past common law formulae. In this respect, I adhere to the view that I expressed in Zhang.[88] However, upon this point, my opinion (shared by Callinan J)[89] was a minority one. The majority of this court concluded, in respect of the equivalent provision in the Supreme Court Rules 1970 (NSW) that, notwithstanding the language of the rule in that case, the test to be applied was whether the party objecting to the forum had shown that the court selected was a “clearly inappropriate forum”.
[159]The relevant rules of the Supreme Court of Victoria are somewhat different from those of the Supreme Court of New South Wales considered in Zhang. However, the divergence is presently immaterial. In resolving the convenient forum issue, the primary judge was bound to apply the “clearly inappropriate forum” test.[90]

[83]Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 [156]–[159] (Kirby J).

5) Mr Dimopoulos’ evidence was contradicted by that of Mr Lau and Mr Teoh.

Mr Lau further submitted that he had no motive to undercut the plaintiff’s business and that, in fact, he was incentivised not to do so by the earn-out provisions in the BS Agreement with the plaintiff.

In Mr Lau’s Written Submissions in Reply, Mr Lau submitted that the further evidence filed by the plaintiff on 29 August 2025 and 8 September 2025, being the recordings and the Translations, clearly supported the contention that the claim against Mr Lau has insufficient prospects of success to allow it to proceed, stating further that Mr Lau accepted the evidence in the Translations and did not contest the certified content of the December Conversations there set out.

Mr Lau submitted that it is apparent from the Translations that Mr Teoh denied Mr Lau’s involvement in the Raku 50+ Powder business, and pointed to the following section of the 17 December 2024 translation by way of example:

Nick: Lawrence is also in it
Teoh: … No. No. No. Don’t blame this on Lawrence first. Because everyone is (words). Lawrence is not in it. This is another new customer…

It was submitted that the content of the non-contested Translations meant that the Court is equipped to determine Mr Lau’s application under r 7.04(2)(c) of the Rules, and that the Court should conclude the plaintiff’s claim against Mr Lau has insufficient prospects of success to allow it to proceed.

Mr Lau’s Written Submissions in Reply also stated that any debate about the extent of Mr Lau’s involvement in negotiating the Agreement entered into between Nature One and Orient Biotech is irrelevant to the plaintiff’s case. It was said that the plaintiff must prove that Mr Lau knew the Agreement existed, and that he admits this openly.

During oral submissions senior counsel emphasised a number of the matters referred to in Mr Lau’s written submissions, and further submitted as follows:

1) The evidence showed, and Mr Lau accepted, that he had sufficient or relevant knowledge of the Agreement.

2) Mr Lau’s and Mr Teoh’s evidence makes clear that Mr Lau was not involved in any way with the production, introduction to market, or sale of the Raku 50+ Powder.

3) The evidence also showed that Mr Lau never had a conversation with anyone from Orient Biotech about the Raku 50+ Powder and that this is emphatically supported by the evidence of Mr Teoh.

4) The Translations of the December Conversations make plain that Mr Teoh repeatedly told Mr Dimopoulos that Mr Lau was not in any way involved and that, contrary to the plaintiff’s pleaded case, Mr Teoh did not say or acknowledge that Mr Lau was ‘involved’.

5) The particulars relied upon by the plaintiff in support of the inducement do not support the allegation because the internal references to paragraph 3 of the statement of claim do not carry the matter anywhere for the plaintiff and, importantly, the Translations provide no support for the contention that Mr Teoh acknowledged that Mr Lau was involved. Rather, so it was submitted, the Translations reveal that Mr Teoh told Mr Dimopoulos the opposite.

6) The Translations also reveal in many parts that the plaintiff and Mr Dimopoulos did not know who was involved in Orient Biotech producing the Raku 50+ Powder, and that the plaintiff was seeking or fishing for this information.

7) The ‘critical point’ is that the plaintiff does not make good the alleged pleaded involvement representation in either of the December Conversations relied upon, which, it was submitted, is fatal to the plaintiff’s case.

8) It was plain that the Inducing Breach Claim against Mr Lau was fanciful, had no real prospects of success and should not be allowed to proceed.

Plaintiff’s submissions – insufficient prospects of success

The plaintiff also addressed the insufficient prospects of success issue in the Plaintiff’s Second Written Submissions, which were supplemented during oral submissions.

In the Plaintiff’s Second Written Submissions, the plaintiff submitted, in substance, as follows:

1) Mr Dimopoulos had deposed that Mr Lau was involved in Orient Biotech’s production of the Raku 50+ Powder. While Mr Lau and Mr Teoh had provided affidavits affirming that Mr Lau was not so involved, ‘[t]hat there are two affiants opposed to one affiant is not determinative of the issue’.[118]
[118]Plaintiff’s Second Written Submissions, [27].

2) The Dimopoulos Affidavits provide contemporaneous documentary evidence challenging the accuracy of Mr Lau and Mr Teoh’s assertions.

3) Orient Biotech’s ‘List of Documents’, which contains a document described as ‘WhatsApp group message exchange between Teoh Eng Sia; Rachel Lew; Devyn Lee; KP Woo; Leslie Wong and Katherine Chan’, shows that Mr Teoh was personally involved in Orient Biotech’s development of the Raku 50+ Powder. More specifically, Mr Teoh, Mr Woo and Mr Wong were part of a WhatsApp group message exchange titled ‘RAKU+ Milk Project’.[119] In screenshots annexed to the First Dimopoulos Affidavit, an unnamed person asks ‘Mdevin’ to ‘clarify’ the ‘knee joint goat milk formula’. A person with the contact name ‘Customer Mr Woo Fei Fah’ then states, ‘Hi Mdevin, pls help to clarify [folded hands emoji]’. ‘Mdevin’ responds with, among other things, notes regarding magnesium content and ‘fortifying value’.[120]

4) A factual dispute is inappropriate for resolution in an interlocutory application of the present kind.[121]

5) Mr Lau had not established that the plaintiff’s claim had no real prospects of success and the Court should not make the orders sought by Mr Lau.

[119]This document was seemingly disclosed by Orient Biotech to Nature One as part of its ‘List of Documents’ filed on 6 June 2025.

[120]First Dimopoulos Affidavit, exhibit page 33.

[121]Citing Agar v Hyde (2000) 201 CLR 552, [57]–[58] (Gaudron, McHugh, Gummow and Hayne JJ).

The matters emphasised or further submitted on behalf of the plaintiff during oral submissions included the following:

1) In the 17 December 2024 telephone conversation with Mr Dimopoulos, Mr Teoh used the words ‘they did consult’, and this provides the basis for the contention that Mr Lau was ‘involved’ with the Raku 50+ Powder, which was submitted to be the plaintiff’s ‘primary point’.

2) The words ‘they did consult’ provide a basis for the allegation in the pleading of Mr Lau having induced, procured or directed the alleged breaches of the Agreement by Orient Biotech.

3) Mr Teoh’s statement that ‘they did consult’ was an admission that Mr Lau had been involved in some sort of consulting role.

4) The WhatsApp messages that refer to Mr Woo were also supportive of the plaintiff’s position because he was an employee of Mr Lau until he resigned when Mr Lau sold his milk powder business to the plaintiff in 2022, and Mr Lau still operates companies with the ‘Fei Fah’ name.[122]

5) Any contested facts should be addressed at trial not on the Application.

6) Consequently, the Court cannot be satisfied that the Inducing Breach Claim against Mr Lau has insufficient prospects to allow it to proceed.

[122]It was also suggested by the plaintiff’s counsel that these matters would later be relied upon as further particulars even though they are not currently pleaded.

Upon enquiry from the Bench, counsel for the plaintiff informed the Court that Mr Dimopoulos had not deposed in either of his affidavits about his assertions to Mr Teoh in the December Conversations that he knew Mr Lau had been involved because others had told him.

Mr Lau’s oral reply submissions – insufficient prospects of success

In his brief oral reply, senior counsel for Mr Lau made the following points. First, when the whole of the relevant part of the exchange is examined, it is around that the words ‘they did consult’ did not relate to or refer to Mr Lau. Second, that, in any event, taken at their highest, alone or in any combination with other circumstances, the three words do not support an allegation of inducing, procuring or directing the alleged breaches of the Agreement by Orient Biotech relied upon. Third, that the WhatsApp messages are not part of the pleaded case, carry the plaintiff’s position no further in any event, and further demonstrate that the plaintiff’s claim has no real prospects of success. Fourth, the plaintiff has had ample time to ‘put its cards on the table’ in support of its case but has fallen well short.

Principles and observations – insufficient prospects of success issue

There was no issue between the parties regarding the principles to be applied for the purpose of r 7.04(2)(c) of the Rules and the fact that the test to be applied is the same as in an application for summary judgment by a defendant served within the jurisdiction.[123] The principles applicable to an application for summary judgment have been recited in countless authorities and are well known.[124]
[123]See Agar v Hyde (2000) 201 CLR 552, 575–576, [56]–[60] (Gaudron, McHugh, Gummow and Hayne JJ).
[124]See, for example, Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd, (2013) 42 VR 27, [35] (Warren CJ and Nettle JA, Neave JA agreeing in part at [40]–[42]); Bendigo and Adelaide Bank Limited v Grahame (2013) 42 VR 27, 39, [23]–[34] (Sloss J).

In Bendigo and Adelaide Bank Ltd v Quine, Croft J summarised the principles as follows when dealing with a similar application:[125]
[125](2018) 55 VR 701; [2018] VSC 272, [14]–[15] (Croft J).

[14]The defendant submits that the claim brought by the plaintiff has insufficient prospects of success to justify requiring the defendant to defend the claim. In Agar v Hyde,[126] a majority of the High Court concluded that in deciding whether a claim in a proceeding served outside Australia should not proceed because of its poor prospects of success, the same test should be applied as in determining an application for summary judgment by a defendant served locally.[127] For the reasons which follow I am of the opinion that were the defendant’s submissions to be treated as something in the nature of a summary judgment application, the application would fail as I am of the opinion that the plaintiff’s claim must be regarded as one which has a ‘real chance of success’ in the relevant sense.
[15]Section 63(1) of the Civil Procedure Act 2010 (Vic) (the CPA) provides that the Court may give summary judgment in any civil proceeding if satisfied that a claim, or part of the claim, has no real prospect of success. Section 63(1) was intended to reform the law by liberalising the test for summary judgment.[128] The Court of Appeal has held:
(a)the test under s 63 should be construed as whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success;
(b)the ‘real chance of success’ test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test;[129]
(c)the ‘real chance of success’ test permits the possibility that there may be cases in which it appears that, although the respondent’s case is not ‘hopeless’ or ‘bound to fail’, it does not have a real prospect of succeeding; and
(d)the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried.[130]

[126](2000) 201 CLR 552.

[127]Ibid 576 [60].

[128]CPA, s 1(2)(e); Explanatory Memorandum to the Civil Procedure Bill 2010, 24; Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27, 28–9 [3], 38 [25], 38 [26], 42 [41].

[129]That being the traditional test as set out in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.

[130]Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27, 39 [29], 40 [35].

Similarly, the Victorian Court of Appeal stated in Uber Australia:[131]

[99][…] Whether or not a claim has insufficient prospects of success within the meaning of r 7.04(2)(c) is to be determined by the same principles which govern a summary judgment application. Accordingly, to succeed in having service set aside on this ground, it was necessary for Uber to establish, as with its strike-out summons, that the plaintiff’s claim had ‘no real prospects of success’. For the reasons given above in dismissing ground 1 of the appeal by the Australian Uber entities, ground 2 of the appeal by the foreign Uber entities must be dismissed. The judge was right to reach that conclusion.

[131](2020) 386 ALR 331, [99] (Niall, Hargrave and Emerton JJA).

The Victorian Court of Appeal upheld Macaulay J’s reasoning in his Honour’s primary judgment. His Honour had observed:[132]

[181]The question of whether a claim has insufficient prospects of success, for this purpose, is to be determined on the same principles for determining a summary judgment application in Victoria.[133] The test for summary judgment in Victoria is set out in s 63 of the Civil Procedure Act 2010 (Vic), which is whether the claim ‘has no real prospects of success’. That phrase has been interpreted in Lysaght Building Solutions Pty Ltd (trading as Highline Commercial Construction) v Blanalko Pty Ltd[134] as enquiring whether the application has a ‘real’ as opposed to a ‘fanciful’ chance of success, a test which is, to some degree, more liberal than the ‘hopeless’ or ‘bound to fail’ test put forward in General Steel Industries Inc v Commissioner for Railways (NSW).[135] It is a power that should be exercised with caution and only if it is clear there is no real question to be tried.
[132]Andrianakis v Uber Technologies [2019] VSC 850, [181] (Macaulay J).
[133]Agar v Hyde (2000) 201 CLR 552, 576 at [60]; Bendigo and Adelaide Bank Limited v Quine (2018) 55 VR 701,
708 at [14].
[134](2013) 42 VR 27, 39 at [29].
[135](1964) 112 CLR 125.

Consideration and disposition – insufficient prospects of success issue

As mentioned at the commencement of these reasons, on the material before me, and having regard to the nature and content of the claim brought by the plaintiff against Mr Lau, I am satisfied that Mr Lau has established that there are insufficient prospects of success of the plaintiff’s Inducing Breach Claim against Mr Lau to warrant putting Mr Lau to the time, expense and trouble of defending the claim. I have so determined by applying the summary judgment test in the manner referred to in the authorities earlier mentioned. That being so, I have also determined that it is appropriate in the circumstances to exercise the Court’s discretion to set aside the Originating Process and its service on Mr Lau, although I do not consider it appropriate to make the alternative orders dismissing or staying the proceeding against Mr Lau. In reaching these conclusions I have also sought to give effect to the overarching purpose in s 7 of the CP Act, as required by s 8 of that Act, and taken into account the objects in s 9 of the CP Act. I elaborate below as to why I have reached these conclusions.

Having regard to the authorities and principles earlier referred to in this context, the framework of analysis involves considering and determining whether Mr Lau has established that the Court can be satisfied that the Inducing Breach Claim has insufficient prospects of success by reference to the test to be applied when a defendant is seeking summary judgment against a plaintiff. Consequently, and consistent with the Court of Appeal’s observations in Uber Australia,[136] the framework of analysis requires me to ask whether, on the material before the Court, Mr Lau has established that the Inducing Breach Claim has no real prospects of success against him.
[136](2020) 386 ALR 331, [99] (Niall, Hargrave and Emerton JJA).

It is also to be noted in this context that the writ and statement of claim was filed on 28 February 2025, and at the time of the Hearing on 7 October 2025, the Inducing Breach Claim against Mr Lau had not been amended and remained in the form originally pleaded as set out earlier in these reasons. It is also the case that the plaintiff has had an opportunity over many months since the summons was filed in April 2025 to put its best foot forward for present purposes in terms of what is said to be the evidentiary basis for the Inducing Breach Claim. As previously mentioned, the plaintiff relied upon a number of affidavits prepared since April 2025, the details of which are set out earlier above.

As a further introductory observation, I refer to, without repeating, my earlier observations regarding: foreign law, the presumption that foreign law is identical to the law of the forum, the plaintiff’s entitlement to rely upon such a presumption, Mr Lau not raising any particular issues of foreign law, and the principles, observations and authorities regarding the tort of inducing breach of contract. With respect to the tort of inducing breach of contract, it is also important to remember that it is one of the ‘intentional torts’, where intention is said to be the gravamen of the cause of action, being an intention to induce or procure a relevant contracting party to breach its contract with the other party or parties.

In assessing whether or not Mr Lau has established that the Inducing Breach Claim has no real prospects of success, I can put to one side for present purposes the question of Mr Lau’s knowledge of the Agreement. This is because senior counsel for Mr Lau informed the Court that knowledge of the Agreement was no longer an issue for present purposes. Even if this appropriate concession had not been made, I would have concluded that the evidence of Mr Dimopoulos on the topic of Mr Lau’s knowledge of the Agreement revealed a reasonable prospect of success for the plaintiff on this point.

However, it is my view that, on the material before the Court, Mr Lau has demonstrated that the evidentiary basis upon which it is alleged that Mr Lau induced, procured, or directed the relevant breaches of the Agreement by Orient Biotech, and that Mr Lau did so with the requisite intention, is manifestly weak and highly speculative at best. In so observing, I am of course cognisant that a court should not and cannot seek to determine questions of contested fact upon applications such as the present, but it is not necessary to do so to form the views and reach the conclusion that I have reached. That being so, I am satisfied that Mr Lau has established that the plaintiff’s Inducing Breach Claim against him has no real prospects of success, and therefore has insufficient prospects of success under r 7.04(2)(c) of the Rules to warrant putting him to the time, trouble, and expense of having to defend it. I elaborate further below.

First, and perhaps unusually in applications of this character, on this application there is a certified agreed translation of the December Conversations brought forward by the plaintiff and which is said to contain the critical evidentiary foundation of the plaintiff’s claim that Mr Lau procured, induced or directed the alleged breaches of the Agreement by Orient Biotech. In particular, this comprises the three-word ‘they did consult’ remark earlier referred to.

Second, and as counsel for each of the parties pointed out and acknowledged, because of the agreed certified Translations of the December Conversations, there was no longer any contest between the parties on the evidence for present purposes about the words that were used by each of Mr Dimopoulos and Mr Teoh in the December Conversations. Rather, submissions were made as to who the words ‘they did consult’ were referring to and, in any event, the extent to which, if any, they could support the Inducing Breach Claim against Mr Lau even if the term ‘they’ were to be construed as referring to Mr Lau.

Third, when read in the context of the whole of the conversation set out in the First Translation, the words ‘they did consult’ appear in a manner where it is, at best for the plaintiff, materially ambiguous if not highly speculative as to whether the phrase ‘they did consult’ includes a reference to Mr Lau, in circumstances where both parties accepted that the Translations should be relied upon by the Court as revealing the universe of the December Conversations.

Fourth, even if it were to be assumed for the purpose of argument that the reference to the three words, ‘they did consult’, includes a reference to Mr Lau, whether this is considered alone or in any combination with any other of the circumstances relied upon by the plaintiff, it relevantly reveals very little insofar as establishing that Mr Lau induced, procured or directed the alleged breach of the Agreement by Orient Biotech, or that Mr Lau did so with the requisite intention. Again, although it was clear that these three words in the December Conversations formed the mainstay of the plaintiff’s contention that Mr Lau induced, procured or directed Orient Biotech to carry out the relevant acts said to breach the Agreement, given the nature and extent of this evidence, in my view such a contention involves high levels of speculation and is manifestly weak. It is also to be remembered that the evidentiary position remains as limited and weak as it is notwithstanding that the plaintiff has had more than ample opportunity to gather and put on additional evidence regarding the foundation of the Inducing Breach Claim in advance of the Hearing.

Fifth, I also note that, notwithstanding numerous assertions in the December Conversations by Mr Dimopoulos that he or the plaintiff knew that Mr Lau was involved or behind the Raku 50+ Powder because he had been told of these matters by others, nowhere in his affidavits does he depose to any of these conversations or this material, as was properly acknowledged by counsel for the plaintiff. Consequently, to the extent that such unsupported assertions appear in the Translations, they should be given no weight for present purposes in circumstances where Mr Dimopoulos could readily have referred to the detail of these matters in his affidavits if he was told that Mr Lau was involved, but he has elected not to do so.

Sixth, it is also apparent from the Translations of the December Conversations that Mr Dimopoulos was consistently fishing for information about who the people behind the Raku 50+ Powder were. Many statements of this kind were made by Mr Dimopoulos and recorded in the Translations.

Seventh, the particulars of the intention referred to and relied upon in paragraph 20 of the statement of claim, as referred to earlier above, are also manifestly weak in my view. The reliance on the particulars to paragraph 3 of the statement of claim is ambiguous or confusing because there are no particulars to that paragraph. Assuming (as I do) that the reference to that paragraph is intended to be a reference to the allegations in paragraph 3 of the pleading, there is little or nothing about the allegations in paragraph 3 that relevantly support in any meaningful way the allegation that Mr Lau intended that Orient Biotech breach the Agreement as alleged. This is because it is only alleged in paragraph 3 of the statement of claim that:

(a)from a date which is not known to Nature One Dairy but from at least in or about 2005 until 2022 [Mr Lau] carried on a business selling and distributing milk powder products under and by reference to the name “Feifah Medi Balm (HK) Co”;
(b)from in or about 1 June 2022 until in or about 26 April 2023 [Mr Lau] was employed by Nature One Dairy as its Regional Director – Hong Kong.

Further, the allegation in paragraph (ii) of the particulars to paragraph 20 (also referred to earlier above), whether alone or in combination with any other circumstances (pleaded or otherwise), does little to provide any evidentiary foundation for the pleaded intention in paragraph 20(b) of the statement of claim that Mr Lau ‘intended that Orient Biotech breach the Agreement’.[137]
[137]For the avoidance of doubt, in so concluding, I have taken into account and applied the principles and observations regarding knowledge and intention referred to in the relevant authorities, including those referred to in the cases addressed in the decision in Selak No 4 [2024] VSC 438, referred to earlier above.

Eighth, and similarly, the unpleaded reliance upon the WhatsApp messages, whether considered alone or in any combination with any other circumstances, does little to relevantly improve the plaintiff’s position on the Application. Mr Lau is not recorded as being part of the exchange, and it was not suggested that he was. In reality, the material reveals no more than it is the plaintiff’s suspicion or speculation that a connection of some kind with Mr Lau springs from the presence of Mr Woo and Mr Wong in the message group. Having regard to the content and images of the said messages in evidence, again, the position is, at best for the plaintiff, very weak and materially speculative, noting also the evidence that Mr Woo and Mr Wong resigned in 2022, and the uncontradicted evidence from Mr Lau that he had not seen or communicated with either of them since.[138]
[138]And even if this matter is put to one side, the conclusions I have reached would be the same.

As I have observed, taking into account the elements of an inducing breach of contract claim that are required to be pleaded and proved, having considered all of the evidence before the Court and the submissions made, in my view the evidentiary basis put forward by the plaintiff to support the Inducing Breach Claim against Mr Lau is manifestly weak and materially speculative at best. In all of the circumstances, Mr Lau has satisfied me that, on the material before the Court, the Inducing Breach Claim against him has no real prospects of success and, therefore, has insufficient prospects of success under r 7.04(2)(b) of the Rules to warrant putting Mr Lau to the time, trouble, and expense of defending the claim.

That being so, and having regard to the principles and observations earlier referred to, as well as the Court’s obligations under the CP Act, it is in my view just, efficient and appropriate that the Court’s discretion be exercised pursuant to r 7.04(1) of the 2025 Rules to set aside the Originating Process against Mr Lau and to set aside the service of the Originating Process on him. As I have also said, I do not propose at this stage to make an order dismissing or staying the Inducing Breach Claim against Mr Lau.

7AAA Notice – indemnity costs issue

Although Mr Lau did not ultimately press the absence of a 7AAA Notice as a substantive matter, an oral application was made that the plaintiff pay Mr Lau’s costs of and incidental to the Application on an indemnity basis up to and including 27 May 2025.

The submissions of Mr Lau’s junior counsel made in support of the application are recorded in the transcript, to which I refer but will not set out. In substance, it was submitted that had a 7AAA Notice been served on Mr Lau with the Originating Process, then Mr Lau would have known that the plaintiff relied upon r 7.02(h)(i) of the Rules as the basis for serving the Originating Process on Mr Lau out of Australia, on the basis that Mr Lau was said to be a ‘proper party’ to the proceeding brought against Orient Biotech. It was contended that had the proper approach to service been followed by the plaintiff then the controversy around the questions of ‘proper party’, and authorisation to serve the Originating Process out of Australia without the leave of the Court under r 7.02 of the Rules, would have been avoided. It was said that Mr Lau would have had time to consider the issue and concede it, as he ultimately did in Mr Lau’s Second Written Submissions.

Notwithstanding the able oral submissions of junior counsel for Mr Lau on this costs point, in my view there is no sound basis upon which the Court could or should make such an order in the circumstances, and the issue can be crisply disposed of. First, although Mr Lau was not served with a 7AAA Notice, which was, at the risk of understatement, regrettable, he was on notice from the time of the directions hearing on 16 May 2025 that the plaintiff contended that it was authorised to serve the Originating Process outside of Australia on Mr Lau because he was a proper party to the proceeding brought against Orient Biotech. A review of the transcript of this directions hearing makes so much readily apparent, as do the directions made that day regarding submissions to be filed on that very issue, and the proposed hearing of the ‘proper party’ question as a preliminary matter.

Second, on 21 May 2025, the plaintiff filed and served submissions in support of its contention that Mr Lau was a ‘proper party’. In so doing, the plaintiff referred to a number of authorities, including some of those drawn to the attention of both of the parties by the Court shortly after the hearing on 16 May 2025. This material provided considerably more information to Mr Lau than he would have received upon the service of a 7AAA Notice.

Third, on 26 May 2025, Mr Lau filed written submissions on the proper party issue, drawn or settled by senior and junior counsel, which strongly contested the proper party contention on the grounds set out in those written submissions.

Fourth, when the proceeding came before the Court on 27 May 2025, at which time it had been proposed that the preliminary question regarding ‘proper party’ would be heard and determined, the issue was still firmly in contest between the parties. As mentioned earlier, that hearing did not proceed because the parties submitted, and the Court accepted, that it was appropriate for all of the issues on the Application to be determined at the same time, as occurred at the Hearing.

Fifth, on the material before the Court at the Hearing, at no time prior to the filing of Mr Lau’s Second Written Submissions on 22 August 2025 was the Court or the plaintiff informed that Mr Lau did not press his contention that service out of Australia was not authorised. The first and only notification of this issue prior to the Hearing was the reference in footnote 1 to Mr Lau’s Second Written Submissions.

Sixth, it is apparent from the above that, notwithstanding that Mr Lau had a considerable opportunity to consider the ‘proper party’ issue, and to do so in the light of the plaintiff’s written submissions on the point and the Court informing the parties of various authorities on the topic, Mr Lau maintained his contested position on the issue until the filing and service of Mr Lau’s Second Written Submissions. This was more than three months after Mr Lau was put on notice of the issue at the directions hearing on 16 May 2025.

In the circumstances I do not accept the submission that, had the 7AAA Notice been served as required and thereby exposed the issue, there would not have been controversy or a contest on the point so as to result in Mr Lau avoiding the incurring the costs and expense that was ultimately incurred in connection with the issue.

Further and in any event, even if I had concluded that such costs and expense would have been avoided in part or in whole, given Mr Kwok’s frank acknowledgement in his evidence regarding his inadvertent error and the reason for the same, I would not have ordered that any costs determined to be paid by the plaintiff to Mr Lau be paid on an indemnity basis.

It is for the reasons referred to above that, on 7 October 2025, I dismissed Mr Lau’s oral application that the plaintiff pay the defendant’s costs of and incidental to the Application up to and including 26 May 2025 on an indemnity basis, but reserved the rights of the parties to make such other general submissions regarding the question of costs as they may wish to make following the delivery of these reasons.

Conclusion and proposed orders

For the reasons referred to above, I reached the conclusions referred to in paragraph 10 of the Introduction and Summary section of these reasons. As mentioned, my ruling was delivered orally on the day of the Hearing on 7 October 2025, and the authenticated orders giving effect to my ruling were in the following terms:

1.Pursuant to rule 7.04(1) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic):
a.the Originating Process served on the second defendant is set aside; and
b.the service of the Originating Process on the second defendant is set aside.

2.The second defendant’s oral application that the plaintiff pay the second defendant’s costs of and incidental to the Application up to and including 27 May 2025 on an indemnity basis is dismissed, but without prejudice to the rights of any party to make other submissions in relation to the costs of the Application more generally.
3.The question of the costs of the Application is reserved to a date to be fixed following the publication of written reasons for the making of these orders.
4.The directions hearing fixed for 10:00am on 21 November 2025 before Justice Connock is confirmed in respect of the plaintiff and the first defendant.

[2025] VSC 649

7 October 2025, ex tempore, revised 17 October 2025