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Sheahan v Joye

Sheahan v Joye

Case [1995] FCA 351 1 June 1995

Civil Litigation & Procedure

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CATCHWORDS

CORPORATIONS - Corporations Law s 596B - Order to attend for examination on matters relating to examinable affairs of a corporation - application for substituted service on a person not in Australia - jurisdiction of Federal Court.

COURTS AND JUDGES - Federal Court - jurisdiction - application for substituted service on a person not in Australia.

PRACTICE AND PROCEDURE - Federal Court Act s 35A(5) - review of exercise of power by a registrar - extension of time to apply for review - O 46 r 7B of the Federal Court Rules - nature of review - order for substituted service on person not in Australia - jurisdiction of Federal Court - action in personam - whether dependent on presence in Australia at date of issue or date of service of process - affidavits - requirement that deponent attend for cross-examination - O 14 r 9 of the Federal Court Rules - requirement that notice be given within reasonable time - affidavit filed during course of hearing - statement on information and belief - whether circumstances such as undue delay or inconvenience would otherwise be caused - O 33 r 2 of Federal Court Rules.

PRIVATE INTERNATIONAL LAW - jurisdiction of Federal Court - Federal Court Act s 18 - action in personam - whether dependent on presence in Australia at date of issue or date of service of process.

EVIDENCE - affidavits - objection to use - requirement that deponent attend for cross-examination - O 14 r 9 of the Federal Court Rules - requirement that notice be given within reasonable time - affidavit filed during course of hearing - statement on information and belief - whether circumstances such as undue delay or inconvenience would otherwise be caused - O 33 r 2 of Federal Court Rules.

Corporations Law s 596B
Federal Court Act ss 18 and 35A(6)
Federal Court Rules O 14 rr 6, 7 and 9, O 33 r 2

Re Deposit and Investment Company Limited (Receiver appointed) (1991) 30 FCR 463 at 464
Laurie v Carroll (1958) 98 CLR 310
Eason v 3AW Broadcasting Company Pty Ltd (1984) 81 FLR 229
Myerson v Martin [1979] 1 WLR 1390 at 1394
Atco Industries (Aust.) Pty Ltd v Ancla Maritima S.A. (1984) 35 SASR 408 at 413-4
Little v Registrar of the High Court of Australia (1991) 29 FCR 544 at 554

No. SG 3137 of 1994
JOHN SHEAHAN v IAN EDWARD JOYE

Branson J.
Adelaide
1 June 1995

IN THE FEDERAL COURT OF AUSTRALIA )
  )
SOUTH AUSTRALIA DISTRICT REGISTRY )    No. SG 3137 of 1994
  )
GENERAL DIVISION                 )

BETWEEN:

JOHN SHEAHAN

Applicant

- and -

IAN EDWARD JOYE

Respondent

MINUTES OF ORDER

CORAM:    Branson J.
PLACE:    Adelaide
DATE:     1 June 1995

THE COURT ORDERS THAT:

The application by Notice of Motion dated 17 March 1995 is dismissed.

The respondent (applicant on the Notice of Motion) is to pay the applicant's costs of the Notice of Motion to be taxed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sheahan v Joye

Details

AGLC: Sheahan v Joye [1995] FCA 351
Case: [1995] FCA 351
Decision Date: 1 JUNE 1995

CaseChat Overview and Summary

In the case of Sheahan v Joye, the Federal Court of Australia was tasked with determining whether the Registrar had the authority to order substituted service on Ian Edward Joye, who was not present in Australia, of a summons issued under section 596B of the Corporations Law to attend for examination concerning the examinable affairs of a corporation. The applicant, John Sheahan, the Receiver and Manager of Cortaus Limited (In Liquidation), sought the order for substituted service after Joye had left Australia. The court faced key issues regarding the validity of substituted service, the requirements for cross-examination, and the jurisdiction of the court to order such service.

The court examined the legal framework governing substituted service and found that the authority of the court to exercise jurisdiction over a person in an action in personam is dependent on their presence in the jurisdiction at the time of the issue of the process, rather than at the time of service. The court concluded that since Joye was present in Australia when the summons was issued on 6 December 1994, the court had the jurisdiction to order substituted service upon him, despite his subsequent departure from Australia on 13 December 1994.

Further, the court addressed the objection to the use of Joye's affidavit due to his absence from Australia and the failure to provide reasonable notice for cross-examination as required by Order 14 Rule 9 of the Federal Court Rules. The court determined that while the applicant was not in a position to provide notice of cross-examination before the filing of Joye's affidavit, it was reasonable for the applicant to require Joye's attendance for cross-examination given the circumstances, including Joye's absence from Australia. However, the court declined to admit Joye's affidavit into evidence as it was not reasonable to require Joye to return to Australia for the purpose of being cross-examined.

Ultimately, the court held that the order for substituted service was valid and dismissed the application by Joye to set aside the order and declare that the order and summons had not been duly served upon him. The court's decision was based on the principle that the court's jurisdiction is determined by the presence of the defendant within the jurisdiction at the time the process is issued, and the authority to order substituted service is not contingent on the defendant's presence at the time of service.

Orders