Norwest Group Logistics Pty Ltd v Buyake Investments Ltd (Registration No 1202 2004 2635 (Zambia))
[2024] WASC 62
•12 MARCH 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: NORWEST GROUP LOGISTICS PTY LTD -v- BUYAKE INVESTMENTS LTD (REGISTRATION NO 1202 2004 2635 (ZAMBIA)) [2024] WASC 62
CORAM: HOWARD J
HEARD: 16 JANUARY 2024 & 7 MARCH 2024
DELIVERED : 12 MARCH 2024
FILE NO/S: CIV 2469 of 2023
EX PARTE
NORWEST GROUP LOGISTICS PTY LTD
Plaintiff by ex parte
AND
BUYAKE INVESTMENTS LTD (REGISTRATION NO 1202 2004 2635 (ZAMBIA))
First defendant
ALAN GEORGE CYRIL MCVITTY
Second defendant
JUSTUS ROOS
Third defendant
Catchwords:
Practice and procedure - Ex parte application for leave to serve writ outside Australia - Whether contractual cause of action is within head of jurisdiction for leave to serve out under O 10 r 1(1)(iii), r 1(10)(f) and, or, r 2 - Whether claim under s 236 of Australian Consumer Law is within O 10 r 1(1)(k) - Mode of service in Zambia and South Africa - Whether need to put on evidence of foreign law going to service
Legislation:
Australian Consumer Law (Cth)
British Nationality Act 1981 (UK)
Courts Administration Act 1993 (South Africa)
Fair Trading Act 2005 (WA)
High Court Rules
Trade Practices Act 1974 (Cth)
Uniform Rules of South African Courts
Zambian Companies Act
Result:
Application granted
Category: B
Representation:
Counsel:
| Plaintiff by ex parte | : | Mr S R Sirett |
| First defendant | : | Not applicable |
| Second defendant | : | Not applicable |
| Third defendant | : | Not applicable |
Solicitors:
| Plaintiff by ex parte | : | Thomson Geer - Perth |
| First defendant | : | Not applicable |
| Second defendant | : | Not applicable |
| Third defendant | : | Not applicable |
Case(s) referred to in decision(s):
Akai Pty Ltd v People's Insurance Company Ltd (1996) 188 CLR 418
ANZ Grindlays Bank v Fattah (1991) 4 WAR 296
BP Exploration Co (Libya) Ltd v Hunt [1980] 1 NSWLR 496
Channar Mining v CMIEC (Channar) [2003] WASC 253
Commonwealth Bank of Australia v White [1999] 2 VR 681
Damberg v Damberg (2001) 52 NSWLR 492
Earthworks and Quarries Ltd v F T Eastment & Sons Pty Ltd [1966] VR 24
Egis Consulting Australia Pty Ltd v First Dynasty Mines Ltd [2001] WASC 22
Gosman v Ockerby [1908] VLR 298
International Corp Ltd v Besser Manufacturing Co [1950] 1 KB 488
Lew Footwear Holdings Pty Ltd v Madden International Ltd [2014] VSC 320
Mallon & Co Lawyers Pty Ltd v Gam [2012] WASC 376
Micon Mining and Construction Products GMBH & Co KG v MacMahon Mining Services Pty Ltd [2022] WASCA 56
Rock Solid Surfaces Pty Ltd v Biesse Group (Australia) Pty Ltd [2011] FCA 42
Von Pezold v Border Timbers Ltd [2020] EWHC 2172
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Williams v The Society of Lloyd's [1994] 1 VR 274
HOWARD J:
By originating motion filed 22 December 2023, the plaintiff:
… seeks leave to issue a Writ and serve it out of the jurisdiction of the Commonwealth of Australia on the grounds that the Supreme Court of Western Australia has jurisdiction to determine this claim under the jurisdictional bases specified in Order 10 rules 1(1)(e)(iii), 1(1)(f), 1(1)(k) and 2 of the RSC: [7]
By the originating motion four defendants were sought to be served.
A draft writ endorsed with a statement of claim was attached to the supporting affidavit of Jessica Sara Chapman filed 22 December 2023 (first Chapman affidavit).
The matter was listed to be heard on 16 January 2024. At that hearing, the plaintiff sought further programming orders to allow it to address some issues the Court raised.
Pursuant to those programming orders, the plaintiff filed on 26 February 2024:
1.a further affidavit of Ms Chapman (second Chapman affidavit);
2.supplementary submissions; and
3.an Amended Minute of Proposed Orders.
A further draft writ and statement of claim was attached to the second Chapman affidavit.[1] Unless stated otherwise, references to pleadings are to this draft writ and statement of claim.
[1] 'JSC-18' at page 29 of the second Chapman affidavit.
The plaintiff is an Australian incorporated company. It is pleaded that the plaintiff's principal place of business is and was at all material times at Great Eastern Highway, Belmont, in Western Australia.
The proposed first defendant (Buyake) is a company incorporated under the laws of Zambia with which it is alleged that the plaintiff contracted.
The plaintiff seeks to claim against Buyake under:
1.a contract; and
2.section 236 of the Australian Consumer Law.
The individuals who are the proposed second and third defendants are pleaded, at all material times, to have been directors of, and agents for, Buyake in its dealings with the plaintiff.
As against them, the plaintiff claims damages or compensation pursuant to s 236 of the Australian Consumer Law: there is no contractual claim made against them.
Applicable principles
Relevantly to this application, the Court of Appeal in Micon Mining and Construction Products GMBH & Co KG v MacMahon Mining Services Pty Ltd [2022] WASCA 56 (Buss P, Beech and Vaughan JJA) said:
[67]Order 10 r 1(1) RSC must be read with O 10 r 4 RSC and O 5 r 9 RSC must be read with O 10 RSC. Putting aside the exception in O 10 r 1A(2) RSC, the court would not grant leave to issue a writ for service outside of Australia unless the court would also grant leave to serve the writ outside Australia. O 10 r 1(1) and r 2 RSC set out relevant conditions or gateways, one of which must be satisfied … before the discretion to grant leave under s 10 RSC is enlivened. Moreover, the discretion is not at large. In terms of O 10 r 4(2) RSC leave will not be granted unless it sufficiently appears that the case is a proper one for service out of jurisdiction under O 10 RSC. (original emphasis)
[71]In addition to the formalities prescribed by O 10 r 4(1) RSC, two requirements must be met before the court will grant leave to serve a writ on a person outside Australia. First, the plaintiff's case must satisfy one or more of the jurisdictional gateways in O 10 r 1(1) or r 2 RSC. Second, the court must be persuaded to exercise its discretion in favour of the grant of leave - it must be 'sufficiently' apparent that the case is a 'proper one' for service out of the jurisdiction. For example, the court should be satisfied that the proceedings will not be stayed on inappropriate forum grounds or otherwise be liable to summary dismissal. …
[76]The applicant for leave must establish that all of the claims in the proceedings fall within O 10 r 1(1) or r 2 RSC. The plaintiff will not be allowed to proceed with causes of action for which service outside Australia cannot be sustained under O 10 RSC. Nor can there be leave to amend a writ which has not been served outside Australia to add a cause of action which does not qualify under O 10 RSC. (original emphasis) (citations omitted)
The Supporting Affidavits
The two Chapman affidavits, in my view, satisfy the requirements of O 10 r 4(1).
The contractual claims
Relevantly, the plaintiff invoked the heads of jurisdiction in O 10 r 1(1)(e)(iii), r 1(10)(f) and r 2 for its contract claims.
Respectively, those provisions of O 10 are:
1.When service out of jurisdiction is permissible
(1)The Court may grant leave to serve a person outside Australia with a writ, or notice of a writ, that begins and action if -
…
(e)the action is one brought to enforce, rescind, dissolve, annul, or otherwise affect a contract, or to recover damages or obtain other relief in respect of the breach of a contract, being in either case a contract -
…
(iii)which by its terms or implications is governed by the law of Western Australia;
(f)the action is brought in respect of a breach committed within the jurisdiction of a contract wherever made and irrespective of the fact, if such be the case, that the breach was preceded or accompanied by a breach committed out of the jurisdiction that rendered impossible that performance of so much of the contract as ought to have been performed within the jurisdiction;
…
2.Service out of jurisdiction of writ etc. as to contract
Where it appears to the Court that a contract contains a term to the effect that the Supreme Court shall have jurisdiction to hear and determine any action in respect of the contract, the Court may grant leave to serve a person outside Australia with a writ, or notice of a writ, that begins such an action.
The Contract
The draft statement of claim pleads that Buyake contracted the plaintiff to transport 10 locomotives in this State by land from Beverley to Henderson Port, and then by sea to Durban in South Africa: [9.1] and [11.2]; and see the definitions of Transportation at [9.1] and Contract at [11.2].
The Contract is pleaded to be in writing and comprised of: a Quote provided by the plaintiff dated 17 January 2023; an 'Acceptance' which was communicated by email; and a 'BIMCO Booking Note': draft statement of claim: [11.2]. The BIMCO Booking Note (and its terms) are 'JSC-04' at pages 46 and 48 of the first Chapman affidavit).
The draft statement of claim pleads that, under the Contract, Buyake would pay US$1,085,000 to transport the locomotives and defines that as Dead Freight: [12.3.2].
The draft statement of claim further pleads that, under the Contract, if Buyake failed to deliver or cause to be delivered to the plaintiff possession of the 10 locomotives in time, or if it cancelled the Transportation or the Contract, then it would pay the Dead Freight to the plaintiff: [12.4] ‑ [12.5].
The draft statement of claim, in effect, pleads that the plaintiff (following - and to perform - its Contract with Buyake) entered into contracts with two other parties respectively to enable the transportation of the locomotives from Beverley to Henderson Port: [15.1] and [15.2].
The draft statement of claim pleads (at [13.4]) that on 17 February 2023 Buyake cancelled the Transportation at a time when the plaintiff was ready, willing and able to perform its obligations under the Contract: [15]. The email which is said to cancel the Transportation is at 'JSC-05' to the first Chapman affidavit.
The draft statement of claim pleads that on Buyake's Cancellation of the Transportation, the plaintiff terminated those two other contracts and paid, in accordance with those respective contracts, what it defines as Origins Damages: [15.3].
The draft statement of claim pleads that despite demand Buyake has not paid the Dead Freight and the Origins Damages: [16], [17]. The plaintiff's claimed invoices are 'JSC-06' to the first Chapman affidavit.
The plaintiff then claims payment and, or, damages, arising out of the Cancellation and Buyake's failure to pay: [18], [19] and Prayers for Relief A - C.
Order 10 r (1)(e)
It is plain that the plaintiff's contractual claims are within the chapeau to O 10 r 1(1)(e).
Order 10 r (1)(e)(iii)
Clause 4 of the terms on the BIMCO Booking Note is as follows:
4.Law and Juristiction [sic]
Disputes arising out of or in connection with this Bill of Lading shall be exclusively determined by the court and in accordance with the law of the place where the Carrier has his principal place of business, as stated on Page 1, except as provided elsewhere herein.
When one goes to the first page of the BIMCO Booking Note (at page 46 of the first Chapman affidavit) the 'Carrier' is 'TBC' but above it the 'Agents' is stated to be the plaintiff with its Great Eastern Highway address.
The plaintiff submits that is a 'superficial inconsistency'.[2] Further the plaintiff notes that the document is executed by the plaintiff 'as Carrier'.[3]
[2] Plaintiff's supplementary submissions filed 26 February 2024 [17].
[3] JSC-04 to the first Chapman affidavit at page 48.
While I am not determining the matter finally, I am satisfied for present purposes that the reference to Carrier in cl 4 as quoted on this document at least includes the plaintiff, and that its 'principal place of business' for the purposes of cl 4 is Western Australia.
Clause 4 would then, at least, be a jurisdiction clause in favour of courts operating in Western Australia.
There is a question as to whether the words 'in accordance with the law of the place where the Carrier has his principal place of business' is intended to be an express choice of law clause, or whether it is simply referring to the law of the Carrier's place of business providing the machinery to resolve any 'dispute'. On balance, it seems to me that the natural reading of cl 4 is to the effect that it is any 'dispute' which is to be determined in accordance with the law applicable in Western Australia, rather than the laws applicable in Western Australia governing the Contract as such.
For the purposes of O 10 r 1(1)(e)(iii), the resolution of this is of no real significance. If cl 4 is not an express choice of the governing law, then it is, at the least, a nomination of the courts of Western Australia as the chosen forum. That would, in the absence of any other contrary indicator, provide evidence that the parties had selected the law of Western Australia to govern the Contract: Akai Pty Ltd v People's Insurance Company Ltd (1996) 188 CLR 418, 423 (Dawson & McHugh JJ), 437 (Toohey, Gaudron & Gummow JJ).
Order 10 r 1(1)(f)
As noted, the draft statement of claim pleads that it was a term of the Contract that Buyake would deliver or cause to be delivered to the plaintiff the locomotives at Beverley.
It is not pleaded that the non‑delivery of the locomotives to the plaintiff gives rise to the damages claimed. Rather, as noted, it appears that the plea is that the Cancellation [13.4] gave rise to a contractual obligation on Buyake to pay the sums claimed in the Payment Demand to the plaintiff: [16].
It is then pleaded that the sums claimed under the Contract are for payments due under the Contract and, or, damages in respect of the failure to pay those sums: [18].
The plaintiff submits that, contractually, those payments were to be paid in Western Australia. So, the non-payment was, it is said, a breach of the Contract committed in Western Australia and within O 10 r 1(1)(f).
The plaintiff in this respect first referred to Egis Consulting Australia Pty Ltd v First Dynasty Mines Ltd [2001] WASC 22 [24] (Master Bredmeyer). The learned Master there cited International Corporation Ltd v Besser Manufacturing Co [1950] 1 KB 488 (CA) for the proposition that:
If the contract makes no provision for the place of payments and the creditor is within the State, failure to pay is a breach within the State.
It may be noted that it appears that the proposition was accepted without argument in Egis Consulting.
The rule under consideration in International Corporation was materially the same as O 10 r 1(1)(f). The English Court of Appeal did not specifically consider or state the proposition for which the Master cited the case in Egis Consulting. Rather, Tucker LJ (as he then was) for the Court considered whether the fact that the plaintiff was claiming an account of sales made by the proposed defendant meant that England would not be a convenient forum (as a matter of discretion) for the granting of such relief as the disclosure required could take place more conveniently in the United States of America: page 491.
While the judgment of the learned Master in Egis Consulting is to be respected, the proposition, as I noted, was not the subject of argument there, and does not appear to be supported by the authority on which the Master relied.
After the hearing on 16 January 2024, the plaintiff in seeking to bring itself within O 10 r 1(1)(f) contended that as a matter of construction, the Contract provided, in effect, that Buyake was to pay the plaintiff in Western Australia. The plaintiff relied on, in this respect:
1.clause 10(a) of the terms of BIMCO Booking Note;
2.that the plaintiff's principal obligations under the Contract were to be performed in Western Australia;
3.the plaintiff's principal place of business was Western Australia, although it had some operations in Queensland; and
4.the plaintiff's invoices gave its address in this State.
The plaintiff relied on Earthworks and Quarries Ltd v F T Eastment & Sons Pty Ltd [1966] VR 24, 26 where Dean J stated:
It has long been settled … that prima facie where a contract or bond is silent as to place of payment, it is for the debtor or obligor to seek out his creditor or obligee and the debt is payable where the creditor or obligee is found.
Dean J then referred (with approval) to Gosman v Ockerby [1908] VLR 298, 305 - 306 where Cussen J stated that the 'alleged rule' was of no importance in the class of case where on the proper construction of the contract the local jurisdiction was the place of payment.
As I understand it, on this analysis by Cussen J, the residence or place of business of the creditor is a factor which feeds into that construction.
Although it is strictly unnecessary for me to decide whether the plaintiff has brought itself within O 10 r 1(1)(f) given the conclusion I have reached in relation to O 10 r 1(1)(e) and r 2, I consider that it is sufficiently apparent that on the proper construction of the Contract it provided for payment to the plaintiff in Western Australia. Accordingly, any failure to pay would be a breach within Western Australia.
Order 10 r 2
Whether or not I am correct in my conclusions on O 10 r 1(1)(e), it seems beyond argument that if Carrier in cl 4 includes the plaintiff and its principal place of business, then the plaintiff's contractual claims would be within O 10 r 2: see [26] - [29] above.
Claims under s 236 of the Australian Consumer Law
In relation to the claims under the Australian Consumer Law, the plaintiff relies on O 10 r 1(1)(k) which provides that there may be service out where the action is founded on a tort committed within the jurisdiction.
Three representations are pleaded to have been made by each of the defendants to the plaintiff, namely:
1.the Possession Representation: that Buyake would deliver, or caused to be delivered, to the plaintiff possession of the 10 locomotives at Beverley so as to enable the plaintiff to transport the locomotives to Henderson Port in time: [20.1];
2.the Present Funding Representation:that Buyake had sufficient funds, further or in the alternative sufficient financing, as at the date of the Contract to enable it to perform all of its obligations under the Contract as and when such obligations became due for performance: [20.2]; and
3.Future Funding Representation: being further or in the alternative to the previous Representation above, that Buyake would have sufficient funds, further or in the alternative sufficient financing, to enable it to perform all of its obligations under the Contract as and when such obligations became due for performance: [20.3].
The draft statement of claim pleads that the plaintiff entered into the two other contracts, noted above, relying on the Representations: [24].
The draft statement of claim pleads that:
1.the Present Funding Representation was not true and was misleading and deceptive as a consequence: [22]; and
2.the Possession Representation and the Future Funding Representations were representations as to future matters and were misleading and deceptive because they were made without reasonable grounds: [23].
The draft statement of claim then pleads that:
1.Buyake contravened s 18 of the Australian Consumer Law: [25]; and then, further, or in the alternative,
2.the proposed second and third defendants themselves contravened s 18 of the Australian Consumer Law and, or, were involved in Buyake's contravention of s 18 of the Australian Consumer Law: [26].
The draft statement of claim pleads that the plaintiff suffered loss and damage as a result of the Representations: [27].
For leave to be granted to serve out, the claims under the Australian Consumer Law, the Court has to be positively persuaded that such claims are within O 10 r 1(1)(k); that is that they are relevantly both a tort, and committed within the jurisdiction.
A tort
As far as I am aware, the only decision in this jurisdiction, after a contested hearing, on the question of whether relevant statutory claims are within O 10 r 1(1)(k), is Mallon & Co Lawyers Pty Ltd v Gam [2012] WASC 376 where Master Sanderson held, following the decision of Byrne J in Commonwealth Bank of Australia v White [1999] 2 VR 681, that such claims were within that head.
In Mallon, the statutes concerned were the, then, Trade Practices Act 1974 (Cth) and the Fair Trading Act 2005 (WA). The Master proceeded on the (correct) basis that:
Order 10 does not by its terms authorise service out of the jurisdiction of a claim based upon either of these two statutes: [4].
The Master preferred that decision of Byrne J which held the claims were within O 10 r 1(1)(k) over an earlier, contrary (in some respects) decision of McDonald J in Williams v The Society of Lloyd's [1994] 1 VR 274. With respect, I consider there were good reasons to do so.
Byrne J in White dealt with the matter from [56] and following. His Honour's reasoning focused on the question as arising from the interpretation of the rules for service out. His Honour did not attempt an all‑encompassing answer to the question of whether such a statutory cause of action is a 'tort' for any other purpose.
The matter was returned to by Elliott J in Lew Footwear Holdings Pty Ltd v Madden International Ltd [2014] VSC 320 [159] and following. Elliott J considered the matter in great detail. His Honour said [196]:
Given the state of the authorities, the preferred approach is to adopt the meaning of 'tort' in r 7.01(1)(i) given by Byrne J in Commonwealth Bank of Australia v White. It is the most recent considered decision of this court on the issue. There is no proper basis upon which I could form the view that Byrne J was plainly wrong. Indeed, his Honour is but one of many eminent judges that have also expressed the view that claims made for misleading or deceptive conduct in trade or commerce fit within the meaning of 'tort'. The fact that the causes of action are entirely statutory is not inconsistent with this conclusion.
The provision of the Victorian Rules under consideration in both White and Lew Footwearwas r 7.01(1)(i) which provided for leave to serve out where:
The proceeding is founded on a tort committed within Victoria.
In the circumstances, I do not consider it necessary to repeat the analysis which Byrne J and Elliott J respectively carried out.
There are other cases before and after White and Lew Footwear in which courts have, in other statutory contexts, doubted or held against a statutory misleading and deceptive claim being a tort or tortious conduct. I have not set those cases out here as, as noted, they arise in different statutory contexts from the one under present consideration.
I intend to follow Byrne J in White and Elliott J in Lew Footwear (as well as the Master in Mallon) and hold that the claims sought to be made under the Australian Consumer Law by the plaintiff here are torts within the meaning of O 10 r 1(1)(k).
Committed within the jurisdiction
It is sometimes difficult to state with confidence where a tort is committed.
However, each of the Representations are pleaded to have been made to the plaintiff by email from Buyake (and, or, one of the personal defendants) to Mr Taylor of Alltrack Rail Pty Ltd, who is pleaded to have acted as agent for Buyake [6]. For present purposes, it appears sufficiently clear from the materials before the Court that those emails and pleaded Representations were intended by Buyake (or those acting for it) to be received by the plaintiff and acted upon in Western Australia. And, further, that they were.
In Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, 568 Mason CJ, Deane, Dawson & Gaudron JJ stated that:
If a statement is directed from one place to another where it is known or even anticipated it will be received by the plaintiff, there is no difficulty in saying that the statement was, in substance, made at the place to which it was directed, whether or not it is there acted upon.
For present purposes, that principle has been applied to email communications in a number of cases: see, for example, Rock Solid Surfaces Pty Ltd v Biesse Group (Australia) Pty Ltd [2011] FCA 42 [24] (and the cases cited therein) (Gilmour J).
I am relevantly satisfied that the alleged breaches of the Australian Consumer Law committed as pleaded by the sending of emails were committed within the jurisdiction.
Exercise of discretion to issue the writ
As noted above, in addition to being satisfied that all causes of action are within a head of jurisdiction for service out, the Court must also be satisfied that the action is not likely to be subsequently stayed.
In the course of the application, no matters have appeared to suggest the action is likely to be subsequently stayed.
Mode of service
As a result of the hearing on 16 January 2024, the plaintiff revised the orders it was seeking as to how the 'Service Documents' (as defined in its proposed order 4 of its Amended Minute) be served.
The plaintiff now seeks against Buyake that there be service by:
providing copies of the Service Documents to the Republic of Zambia's Minister responsible for foreign affairs to transmit, if they consider it desirable, to the Registrar (or other responsible officer) of the High Court of Zambia, for service to be effected on the First Defendant in accordance with s 34 of the Zambian Companies Act, namely, by sending a copy of the Service Documents by registered post to the First Defendant's registered office at 4424/193 Kalambo Road, Highlands Livingstone, Southern Province, Zambia.
And, the plaintiff now seeks against the second and third defendants respectively that there be service by:
providing copies of the Service Documents to the Sheriff appointed under the Courts Administration Act 1993 (South Africa), for service to be effected on the Second and Third Defendants in one of the following manners:
i)by delivering a copy to the Second and Third Defendants at their residential address in South Africa; or
ii)by leaving a copy of the Service Documents with a person apparently in charge of those premises and being a person apparently not less than 16 years of age.
Orders 10 r 9 and r 10 relevantly provide:
9.Service abroad through foreign or diplomatic officials
(1)This rule does not apply to service in:
(a)the United Kingdom;
(b)any country listed in Schedule 3 to the British Nationality Act 1981 (United Kingdom);
(c)any British possession.
…
10.Service abroad, general and saving provisions
(1)Subject to rule 9(9), to the following provisions of this rule and to any directions given by the Court as to the manner in which the writ shall be served or brought to the notice of the person, Order 9 rule 1 and Order 72 rule 4 apply in relation to the service of a writ, notwithstanding it is to be served outside Australia.
(2)Nothing in this rule or in any order or direction of the court made by virtue of it shall authorise or require the doing of anything in a country in which service is to be effected which is contrary to the law of that country.
(3)A writ to be served outside Australia -
(a)need not be served personally on the person required to be served, if it is served on him in accordance with the law of the country in which service is effected; and
(b)need not be served by the plaintiff or his agent if it is served by a method provided for by rule 9.
(4)Rule 9 shall not apply to or render invalid or insufficient any mode of service in any foreign country with which a Convention has been or shall be made which is otherwise valid or sufficient according to the procedure of the Supreme Court and which is not expressly excluded by the Convention.
It is apparent from the first Chapman affidavit that neither South Africa, nor Zambia is within O 10 r 9(1); they are also not signatories to the Hague Convention on service.
Following the hearing on 16 January 2024, the plaintiff submitted further evidence as to the relevant law in both Zambia (where Buyake is registered) and South Africa (where it appears that the second and third defendants live and are present).
Buyake
On the BIMCO Booking Note, Buyake's registered office is given as an address in Zambia.
From the two Chapman affidavits (the latter, in part, draws permissibly on advice given by a Zambian lawyer), it appears that:
1.the 'Patents and Companies' Registration Agency' in Zambia is a statutory body, with its principal mandate to provide business registration and intellectual property protection services;
2.the Registrar of that Agency is responsible for the registration of companies and maintaining that register in Zambia; and
3.the Register gives an address in Zambia for both the plaintiff's registered office and its postal address.
The evidence of the Zambian lawyer, given permissibly in the second Chapman affidavit, is that service of a foreign process on a person, including a company, in Zambia is governed by O X r 23 of the High Court Rules and s 34 of the Zambian Companies Act.
The Zambian lawyer identifies no prohibition on the service of this Court's writ on a company in Zambia: cf O 10 r 10(2).
I am satisfied that the mode of proposed service on Buyake in Zambia is both the appropriate mode of service having regard to O 10 r 10(3)(a) and not contrary to any Zambian law.
Location of the proposed second and third defendants
By the two Chapman affidavits (the latter relying permissibly upon the evidence of a South African lawyer), it appears from sources identified within the South African lawyer's report,[4] that each of Mr McVitty and Mr Roos lives at an address in South Africa. I am sufficiently satisfied that they do.
[4] JFC-16 to the second Chapman affidavit [24] and following at page 14 and following.
Service of process in South Africa
In relation to the law in South Africa, in summary, it appears (from the Chapman affidavits which permissibly rely on evidence from the South African lawyer) that once leave has been obtained for service on the directors from an Australian court then service would be effected by the Sheriff in the way prescribed by Uniform Rule 4 of the Uniform Rules of South African Courts. The orders now sought by the plaintiff reflects these modes.
I am satisfied that the proposed mode of service on the second and third defendants is permitted by (having regard to O 10 r 10(3)(a)) and is not inconsistent with the relevant law of South Africa (cf O 10 r 10(2)).
Expert evidence on the foreign laws
Matters of foreign law are treated by Australian courts as questions of fact and normally established by expert evidence given by a suitably qualified expert in that foreign law. An Australian Court 'knows' no foreign law.
The plaintiff, as noted above, put before the Court evidence as to the relevant law in Zambia and South Africa.
In my view, that was both appropriate and is required when one has regard to O 10 r 10(2). That is so this Court can be satisfied that it is not making an order which would require an act in a foreign country contrary to its laws: see Von Pezold v Border Timbers Ltd [2020] EWHC 2172 (QB); [2021] 2 All ER (Comm) 762 [26], [30].
In my view, that approach is consistent with the statements of principle and concerns raised about the potential political implications of service out: see eg, ANZ Grindlays Bank v Fattah (1991) 4 WAR 296, 302 (Anderson J).
I note that the approach I prefer may not be consistent with that put in obiter by Pullin J (as he then was) in Channar Mining v CMIEC (Channar) [2003] WASC 253 [26] - [29].
In this case (as in Channar), the plaintiff did put on evidence as to the foreign law and so it is not necessary for me to deal at length with the reasons as to why I prefer the approach taken in Van Pezold to that approved of in Channar. In short, with great respect, I do not think that the presumption that Pullin J relied on is applicable in this context: see, for example, BP Exploration Co (Libya) Ltd v Hunt [1980] 1 NSWLR 496, 503 as cited with approval in Damberg v Damberg (2001) 52 NSWLR 492 [126] per Heydon JA for the Court.
I will make orders accordingly.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JC
Associate to the Honourable Justice Howard
12 MARCH 2024
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