State of Western Australia v Vetter Trittler P/L (ACN 008 973 386)

[1991] FCA 561

Re: STATE OF WESTERN AUSTRALIA and R. and I. BANK OF WESTERN AUSTRALIA LTD
A.C.N.: 050 494 454
And: VETTER TRITTLER PTY LTD (IN LIQUIDATION) (RECEIVER AND MANAGER APPOINTED)
A.C.N. 008 973 386; WOLF DIETRICH PFLAUMBAUM; R. STAHL Gmbh AND CO.; GUNTHER
STAHL; JOACHIM RAUCH; LOTHAR WETTENGEL
and KURT FRANZ HELMUT SANDNER
No. WA G3003 of 1991
FED No. 561
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

CATCHWORDS

Practice and Procedure - service out of jurisdiction - amendment to form of application - to specify time for filing appearance by reference to date of service - no directions hearing date to be specified on application - directions hearing to be fixed by Registrar - orders sought to accommodate uncertainties of Convention service process.

HEARING

PERTH

#DATE 3:9:1991

Counsel for the Applicant : Mr C.R. Humphry

Solicitors for the Applicant : Mallesons Stephen Jaques

ORDER

The applicants have leave to re-amend the amended application in these proceedings by omitting the following paragraphs on page 6 of the application:

"A directions hearing in this application will be heard by the Court at the time and place specified below. If there is no attendance before the Court by you or your counsel or solicitor, the application may be dealt with and judgment may be given or an order made in your absence. Before any attendance at that time you must file an appearance in the Registry."

and inserting the following:

"A directions hearing in this application will be heard by the Court at the place specified below on a date to be fixed being not less than 28 days from the date of service of this application upon you.

You must file an appearance in the Registry of the Court within 28 days from the date of service of this application upon you or within such longer period as the Court may allow. The appearance must specify an address for service within a distance of 10 kilometres of the Federal Court of Australia, 7th Floor, National Westminster House, 251 Adelaide Terrace, Perth, Western Australia, 6000. If you file an appearance, notice specifying the date and time of the directions hearing will be given to you at the address for service specified in your appearance. If:

(a) you do not file an appearance; or

(b) if there is no attendance before the Court at the directions hearing by you or your counsel or solicitor

the application may be dealt with and judgment may be given or an order made against you in your absence. PLACE: The Federal Court of Australia 7th Floor

National Westminster House 251 Adelaide Terrace PERTH WESTERN AUSTRALIA 6000"

That the solicitors for the applicants give notice to the Court of the service of the application on each of the respondents within seven days from the date on which the applicants receive notice of service in each instance.

Not less than seven (7) days after service of the application upon any respondent the applicants may apply to the Registrar to fix a date for a directions hearing not less than 28 days from the date of such service.

Each respondent served with this application is to file an appearance in the Registry of the Court within 28 days from the date of service of the application upon it or him. Such appearance must specify an address for service within a distance of 10 kilometres of the Federal Court of Australia, 7th Floor, National Westminster House, 251 Adelaide Terrace, Perth, Western Australia.

Upon the filing of an appearance by any respondent, notice specifying the date and time of the directions hearing in relation to that respondent is to be given to him at the address for service specified in the appearance.

A copy of this order is to be served upon each respondent with the amended application.

The costs of the motion for leave to re-amend the amended application be costs in the cause.

NOTE: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

On 18 June 1991 I ordered that the applicants have leave to serve the application and statement of claim in these proceedings outside the Commonwealth on the second to seventh respondents inclusive. The applicants now move for leave to re-amend their amended application so that instead of specifying a date for a directions hearing, it will indicate that a directions hearing will proceed on a date to be fixed being not less than 28 days from the date of service of the application. The proposed amended application would also require the filing of an appearance in the Registry of the Court within 28 days of service and the specification of an address for service within a distance of 10 kilometres from the Court.

1. The reason for the amendment, as explained by counsel for the applicants, arises from the need to effect service on the respondents in Germany under the provisions of a British and German Convention concluded in 1928 to which Australia is a party. The Convention provides for a request for service procedure between an appropriate authority of the requesting country and a corresponding authority in the country in which it is desired to effect service. Service is to be effected by the competent authority of the country applied to (Article 3(c)). I am informed by counsel and accept that the procedure under the Convention may take some months to complete. Because of the uncertainty attaching to the date of service, it is thought appropriate that the application should not bear a specific directions date but rather require an appearance to be filed within 28 days of service and a directions hearing date be fixed thereafter.

2. There is no difficulty with the form of the application proposed, but it seems to me desirable that it be supported by formal directions which require the filing of the appearance and specification of an address for service within the time suggested and the fixing of a date for a directions hearing thereafter. I propose therefore to make the following orders:
   1. The applicants have leave to re-amend the amended
   

application in these proceedings by omitting the following paragraphs on page 6 of the application: "A directions hearing in this application will be heard by the Court at the time and place specified below. If there is no attendance before the Court by you or your counsel or solicitor, the application may be dealt with and judgment may be given or an order made in your absence. Before any attendance at that time you must file an appearance in the Registry."

and inserting the following:

"A directions hearing in this application will be heard by the Court at the place specified below on a date to be fixed being not less than 28 days from the date of service of this application upon you. You must file an appearance in the Registry of the Court within 28 days from the date of service of this application upon you or within such longer period as the Court may allow. The appearance must specify an address for service within a distance of 10 kilometres of the Federal Court of Australia, 7th Floor, National Westminster House, 251 Adelaide Terrace, Perth, Western Australia, 6000.

If you file an appearance, notice specifying the date and time of the directions hearing will be given to you at the address for service specified in your appearance. If:

(a) you do not file an appearance; or

(b) if there is no attendance before the Court at the directions hearing by you or your counsel or solicitor the application may be dealt with and judgment may be given or an order made against you in your absence. PLACE: The Federal Court of Australia 7th Floor

National Westminster House 251 Adelaide Terrace

PERTH WESTERN AUSTRALIA 6000"

1. That the solicitors for the applicants give notice to the Court

of the service of the application on each of the respondents within seven days from the date on which the applicants receive notice of service in each instance.

1. Not less than seven (7) days after service of the application

upon any respondent the applicants may apply to the Registrar to fix a date for a directions hearing not less than 28 days from the date of such service.

1. Each respondent served with this application is to file an

appearance in the Registry of the Court within 28 days from the date of service of the application upon it or him. Such appearance must specify an address for service within a distance of 10 kilometres of the Federal Court of Australia, 7th Floor, National Westminster House, 251 Adelaide Terrace, Perth, Western Australia.

1. Upon the filing of an appearance by any respondent, notice

specifying the date and time of the directions hearing in relation to that respondent is to be given to him at the address for service specified in the appearance.

1. A copy of this order is to be served upon each respondent with the amended application.

1. The costs of the motion for leave to re-amend the amended

application be costs in the cause.