Whung and Whung and Ors (No 2)

[2011] FamCA 822

FAMILY COURT OF AUSTRALIA

WHUNG & WHUNG AND ORS (NO 2) [2011] FamCA 822

FAMILY LAW - PRACTICE AND PROCEDURE - Service in Taiwan

Family Law Rules 2004 Rule 7.19, Rule 11.02(2)(c)

APPLICANT: Ms Whung

FIRST RESPONDENT: Mr Whung

SECOND RESPONDENT: Mr C

THIRD RESPONDENT: Mr V

FOURTH RESPONDENT: Ms J

FIFTH RESPONDENT: Mr K

SIXTH RESPONDENT: W

FILE NUMBER: BRC 5594 of 2010

DATE DELIVERED: 12 October 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 12 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Carter

SOLICITORS FOR THE APPLICANT: McKelvey & Hu Lawyers

COUNSEL FOR THE FIRST, SECOND, THIRD AND FIFTH RESPONDENTS: Mr Hackett

SOLICITORS FOR THE FIRST, SECOND, THIRD AND FIFTH RESPONDENTS: Wesley Lawyers

THE FOURTH AND SIXTH RESPONDENTS: No appearance

Orders

IT IS ORDERED

1. The respondents and each of them file in the Court and serve on the applicant's solicitors by 4.00pm on Friday 11 November 2011:

   a.     a response to the applicant's amended initiating application filed 9 June 2011 served on each respondent and

   b.    a defence to the applicant's statement of claim dated 1 July 2011 served on each respondent.

2. The applicant file in the Court and serve on the respondents a reply by 4.00pm on Wednesday 7 December 2011.

3. If any respondent should default in compliance with order 1 the applicant may pursuant to Rule 11.02(2)(c) of the Family Law Rules 2004 proceed against such respondent on the undefended basis.

4. The matter be listed for mention at 9.30am on Thursday 8 December 2011.  

NOTATION:

1. It has been determined that, subject to any specific dispute in the future by the fourth and/or sixth respondents, there has been good service on all respondents: reasons for judgment 12 October 2011.

IT IS NOTED that publication of this judgment under the pseudonym Whung & Whung and Ors (No 2) has been by the Chief Justice approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5594  of 2010

Ms Whung

Applicant

And

Mr Whung

First Respondent

And

Mr C
Second Respondent

And

Mr V
Third Respondent

And

Ms J
Fourth Respondent

And

Mr K
Fifth Respondent

AND

W
Sixth Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Mr McKinnon of Wesley Lawyers has instructed Mr Hackett of Counsel for the first, second, third and fifth respondents. They are respectively the husband and his three sons.  No issue is taken as to service.

2. In relation to the fourth and sixth respondents, whose names are Ms J and W, each of those persons is a national of and resident in Taiwan. 

3. Initially there was considerable doubt as to whether service by hand on those persons could be good service on the basis that Rule 7.19 of the Family Law Rules 2004 provides that service in a non-convention country may be effected in accordance with the law of the non-convention country, or if the non‑convention country permits service of judicial documents through the diplomatic channel, by that method.

4. There is no service convention between Australia and Taiwan, with effect that it is a non-convention country within the meaning of the Rules.

5. Mr Carter of Counsel, for the wife, today has filed with my leave an affidavit of Mr B which contains information as to communication with the Australian Government Attorney-General’s Department, which has updated its website since I first dealt with the issue of service in Taiwan on 7 March 2011, with effect that there is now current information on the website concerning service in non-convention countries.

6. The evidence is helpful.  Annexure EL2 to the affidavit is an extract from the website in relation to service overseas by private process servers and by registered post. It contains a notice that some countries may object to service via private process servers or registered post for reasons of sovereignty; that countries may also object to service via these channels on their own citizens or limit the scope of service to Australian citizens only; and that service by registered post may also be limited to certain actions or judicial documents. The notice thus cautions that reference should be made to the relevant Australian court rules to determine whether service by registered post would be sufficient.

7. The extract contains reference to a list of material which "may help you identify if a country will accept service by private process servers or registered post".  The first such reference is to the "US Department of State – Judicial Assistance – Country Specific Information".  That document is extracted and comprises annexure EL3 to the affidavit showing, under the subheading Service of Process, the following:

   Service of process in Taiwan can be effected by international registered mail/return receipt requested; by agent, generally a local attorney; or pursuant to a letter rogatory. … (emphasis added)

8. In this case, I am satisfied in respect of the fourth respondent that there has been service by hand on her by a local attorney as agent of the initiating process, as to which I place reliance on the affidavit of Mr F filed 29 June 2011 in particular pars 9-11.

9. Similarly I am satisfied in relation to the sixth respondent that there has been service by hand on her by a local attorney as agent of the initiating process, as to which I place reliance on the affidavit of Mr D filed 29 June 2011, in particular pars 19 to 21. 

10. Those same two affidavits show that at the same time as service of the initiating process a copy of the wife's affidavit filed 9 June 2011 also was served.

11. For the sake of completeness I will add that in relation to the fourth respondent I am satisfied that the service of the initiating process was effected on 17 June 2011; pars 9-11 of the affidavit to which I have referred; and that in relation to the sixth respondent I am satisfied service was effected also on 17 June 2011; pars 20 to 21 of the affidavit to which I have referred.

12. Rule 7.19(1)(a) in my view is satisfied, by reference to the materials to which I have referred.

13. Mr Carter referred to several affidavits containing reference to the law in Taiwan as to service in Taiwan of documents initiated in the local courts in Taiwan, but distinguished service in Taiwan of documents issued by foreign courts. In this regard I would refer to Mr Carter's submissions filed on 20 June 2011 and 12 October 2011, especially 12 October 2011, pars 29-49.

14. I will note that the evidence shows that in addition to service by hand of the initiating process on the fourth and sixth respondents it was served also on each by registered mail with return receipt: affidavit Mr D filed 29 June 2011, pars 17, 18. Indeed each of the fourth and sixth respondents, on 17 June 2011 when each was served by hand, orally acknowledged earlier receipt by each of the initiating process by registered post: see the affidavit references above as to service by hand and the conversations deposed to as having occurred at the time of service by hand.

15. I observed earlier in these proceedings, I think on 7 March 2011, that the object of all service is to bring court process to the attention of a party.  There cannot be better service than personal service by hand.  That has been achieved here in relation to both the fourth and sixth respondents by a local attorney in Taiwan.

16. The order made on 23 June 2011 required also service on the fourth and sixth respondents of the wife’s statement of claim and a copy of the order made on 23 June 2011.  These, not being initiating documents, were able to be and were served by registered post: affidavit Mr E filed 26 August 2011. 

17. Mr McKinnon has indicated from the Bar table that it presently seems unlikely that he will receive instructions to act for the fourth and sixth respondents. It may be that they take the view that any order made in Australia concerning real property in Taiwan will not be binding on them so that happily they can ignore it as not affecting their real property registered interests in Taiwan. This may be so. It is yet to be argued: reasons for judgment 4 March 2011 concerning the anti-suit injunction application and the relevant questions of law concerning real property in Taiwan in particular in relation to blind trusts.

18. That may well be their entitlement, to ignore the process and the proceedings. They may well be correct in taking that stand and ignoring the Australian court process. That will have to be determined on another day, as foreshadowed in the reasons for judgment 4 March 2011.

19. To move the proceedings along I will make an order that each of the respondents by mid November file a response to the wife’s amended initiating application and a defence to the wife’s statement of claim.

20. I will also order as often is done in this Court that if any of the respondents should default in compliance with that order the wife pursuant to rule 11.02.2(c) may proceed against such respondent on the undefended basis. 

    ORDERS DELIVERED

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 12 October 2011.

Associate:     

Date:              25 October 2011