BP Exploration Co (Libya) v Hunt

REASONS FOR JUDGMENT (Extempore) The Court has before it an amended notice of motion brought by the applicant, Pino Fiorentino, seeking leave to serve a summons outside the Commonwealth of Australia. The summons is a summons to attend for examination under s 596B(1) of the Corporations Law. It is addressed to one Robert Stewart Francis Dwyer who is presently in England. The applicant is the liquidator of Absolutely Fabulous Exhibitions and Events (Management) Pty Limited. Mr Dwyer is the second respondent to the application. The applicant seeks to examine Mr Dwyer in order that inquiry may be made of him in relation to activities of his in respect of the company and in respect of a related company known as A.S.K. Promotional Solutions Pty Limited. The first, third and fourth respondents are resident in Australia and I am advised that summonses have been served upon them. No orders are sought in respect of that service. It is necessary to refer only briefly to the prior history of the matter. The applicant made application to this Court on 2 September 1997. That application sought that the respondents be summoned for examination about the examinable affairs of Absolutely Fabulous Exhibitions and Events (Management) Pty Limited pursuant to ss 596A and 596B(1) of the Corporations Law. It also sought in the summonses production by the respondents of certain documents therein set out. That application was acceded to insofar as the relevant summonses were issued by the Court. As I have already indicated, service of the summonses upon persons resident in Australia has been effected. The summons addressed to Mr Dwyer, however, could not be served as he is currently in England. Accordingly, application has been made by the present notice of motion for the granting of the leave referred to. The notice of motion is brought under O 8 rr 1 and 2 of the Federal Court Rules. Order 8 r 1 provides that "originating process" may be served outside the Commonwealth in a number of circumstances. There follows within the rule a large number of itemised circumstances in which originating process may be so served. Reliance is placed upon three of the itemised cases. They are to be found in O 8 r 1(ag), (e) and (k) which provide as follows:- "(ag) where the proceeding affects the person to be served in respect of his or her membership of a corporation: (i) carrying on business in the Commonwealth; or (ii) registered in a State or Territory as a foreign company; ... (e) where the person to be served is domiciled, incorporated or ordinarily resident in the Commonwealth, or being a corporation carries on business in the Commonwealth or is registered in any State or Territory as a foreign company; ... (k) where the proceeding affects the person to be served in respect of - (i) his membership of or office within a corporation incorporated or carrying on business within the Commonwealth; (ii) his membership of or office within an association or organization formed or carrying on the whole or part of its affairs within the Commonwealth; or (iii) his conduct as a member or officer of such corporation, association or organization; ..." It has been submitted on the basis of evidence placed before the Court that the requirements of these paragraphs have been made out in respect of service upon Mr Dwyer. It is said that paragraph (ag) is applicable insofar as the relevant proceeding, to which I shall make reference later, affects him in respect of his membership of a corporation carrying on business in the Commonwealth. In respect of paragraph (k) a similar submission is made. It is said that Mr Dwyer is affected by the proceeding in respect of his membership of or office within a corporation carrying on business within the Commonwealth, or through his conduct as a member or officer of such a corporation. In respect of paragraph (e) it is said that he is relevantly a person ordinarily resident in the Commonwealth. I should say at this stage that the evidence placed before me in affidavits, to which I shall not make reference in these short reasons, satisfies me that Mr Dwyer is a person ordinarily resident in the Commonwealth and that the contemplated proceedings would affect him in respect of his conduct as a member of the corporation A.S.K. Promotional Solutions Pty Limited and also in respect of his membership of or office within that corporation. I am also satisfied that the contemplated proceedings would affect him, within the meaning of paragraph (ag), in respect of his membership of the corporation. In my view, the word "affect", where used in these paragraphs, should be given a wide meaning. At the very least it can be given the meaning of "having an effect upon". Giving it such a meaning I consider that the evidence establishes that the contemplated proceedings would indeed have the result of affecting Mr Dwyer within the meaning of these paragraphs. In order for service to be effected under O 8 r 1 it is necessary that leave be given pursuant to O 8 r 2. For such leave to be given the Court must be satisfied in accordance with O 8 r 2(2) of the following matters: "(a) that the proceeding is a proceeding in which the Court has jurisdiction; (b) that the proceeding is a proceeding to which rule 1 applies; and (c) that the applicant has a prima facie case for the relief which he seeks." It will be convenient to return to this portion of O 8 r 2 after a consideration of certain other matters that arise for determination in this motion. The motion was before the Court on 7 November 1997 at which time it was considered by Emmett J in circumstances where his Honour expressly did not become part heard. The matter was considered in a preliminary way only. After certain problems appeared to arise his Honour took the view that the matter should be adjourned for hearing again before the duty judge today and that is the reason, of course, that I have heard it. His Honour took that course because it appeared that more time was needed for the consideration of problems which had appeared to arise. Those problems have been addressed in the proceedings before me today. The major problem that required further consideration was whether the summons sought to be served overseas upon Mr Dwyer was relevantly an "originating process" within the meaning of O 8 r 1. If it could not be so described then, of course, the rule could not apply to it and leave could not be granted for its service outside the Commonwealth as contemplated by O 8 rr 1 and 2. The concern in relation to the characterisation of the summons as originating process arose from a passage in the judgment of Lockhart J in Re Sherlock (1991) 102 ALR 156. An examination of that case reveals that his Honour was concerned with an application not under O 8 rr 1 and 2 but under O 8 r 3. That rule provides as follows "Subject to any convention, service outside Australia of a document other than originating process is valid if the service is in accordance with the prior leave of the Court or is confirmed by the Court." The rule applies in circumstances where the document sought to be served is not to be characterised as an originating process and, therefore, does not fall within the provisions of O 8 rr 1 and 2. Accordingly, his Honour was concerned in Re Sherlock to determine whether a document which was not an originating process within the meaning of the Rules could be made the subject of leave for its service outside Australia. In the course of his reasons, however, his Honour said (at 159):- "A s 597 examination order has frequently been called the exercise of an extraordinary power: see Re North Australian Territory Co (1890) 45 Ch D 87 at 93; Re Rolls Razor Ltd (No 2) [1970] 1 Ch 576 at 591-2. However, I am satisfied that an order to attend for examination before this court pursuant to s 597 is 'a document other than originating process' within the meaning of r 3..." His Honour then cited two cases heard in the Supreme Court of New South Wales, namely Re Austral Oil Estates Limited (in liq) (1986) 7 NSWLR 440, a decision of McLelland J (as his Honour then was), and BP Exploration Co (Libya) v Hunt [1980] 1 NSWLR 496, a decision of Hunt J. I have considered those decisions in light of his Honour's reference to them in this passage. I am satisfied that the passage itself should properly be regarded as obiter. Accordingly, I feel free to consider for myself whether I am relevantly bound, at least to the level of persuasion, by the decisions in the Supreme Court to hold that a summons for examination pursuant to the sections of the Corporations Law which have taken the place of s 597 referred to in the passage from Re Sherlock, cannot be regarded as an originating process for the purpose of the application of O 8 rr 1 and 2. An examination of Austral Oil indicates that McLelland J said (at 441): "An examination order is not 'originating process' within the meaning of the Supreme Court Rules, Pt 10, (see the definition in Pt 1, r 8)." An examination of the definition in Pt 1 r 8 indicates that for the purpose of the Supreme Court Rules originating process is undoubtedly defined in a way which would exclude a summons for examination pursuant to the relevant sections of the Corporation Law. The decision of Hunt J in BP Exploration proceeds in the same way. Accordingly, the decisions in the Supreme Court of New South Wales must be seen as being based upon the precise wording of the Supreme Court Rules. They would, of course, be highly persuasive authorities in this Court if the Federal Court Rules were framed in the same way. They are not, however, so framed. There does not appear to be any definition of originating process in the Federal Court of Australia Act 1976 (Cth) or Rules. What one finds, however, in the definition section of the Federal Court of Australia Act (s 4) is a definition of the word "proceeding". It reads as follows:- "'proceeding' means a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connexion with, a proceeding, and also includes an appeal;" This is a very wide definition indeed. I am satisfied that for present purposes one can regard the original application for the issue of the summonses in this matter as a proceeding in the Court and one can regard the current application by notice of motion for leave for the service of that summons outside Australia as a proceeding incidental to the original application or one relevantly in connexion with it. One can also regard the contemplated examination of Mr Dwyer as a proceeding incidental to or connected with the original application. Indeed, I am persuaded that one need not look to these aspects of the definition in order to characterise the current proceedings for the obtaining of leave or the contemplated proceedings for examination as being proceedings of an ancillary kind. The definition is sufficiently wide, in my view, to confer upon them the title of proceeding in their own right. I should also indicate that this Court has on at least two occasions given some consideration to the term "proceeding" as used in the Act and Federal Court Rules. In Re Interchase Corporation Limited (1996) 68 FCR 481 at 487 Keifel J referred to the term "proceeding" in a matter indicating that she regarded it as being of considerable breadth. Similarly, in Pasdale Pty Limited v Concrete Constructions (1995) 59 FCR 446 Finn J said (at 448):- "The definition of 'proceeding' in the Federal Court of Australia Act 1976 (Cth) s 3 [sic], for example, in its reference to 'an incidental proceeding in the course of, or in connection with, a proceeding', is apt to encompass a motion for security for costs." I am fortified by the existence of these comments by members of this Court in adopting the approach in this matter that the term "proceeding" can be given the wide meanings to which I have made reference. I return to O 8 r 1. The paragraphs to which I have made reference, with the exception of paragraph (e), make reference to "the proceeding". When one reads O 8 r 1 in its entirety and has regard to this use of the term "proceeding" one is able, in my opinion, to regard the term "originating process" as relating directly to the term "proceeding". It should be read as referring to any process of the Court which could properly be regarded as instituting a proceeding referred to in the various subparagraphs of O 8 r 1. If, as I think, the position is, the contemplated examination of Mr Dwyer pursuant to s 596B of the Corporations Law is relevantly a proceeding within the meaning of O 8 r 1 and, of course, the definition in s 4 of the Federal Court of Australia Act, then process of the Court which has the effect of instituting such a proceeding or bringing it about can relevantly be regarded as originating process within the meaning of O 8 r 1. This would mean that the summons sought to be served out of Australia on Mr Dwyer can be regarded and should be regarded as relevantly originating process within the meaning of O 8. Consequently, in my opinion, the requirements of O 8 r 1 are satisfied in the present case. Leave can be granted for the service of the summons outside the Commonwealth providing I am satisfied as to the matters in O 8 r 2(2). The requirements set out in subrules 2(a) and (b) are clearly satisfied. This Court has jurisdiction and, as I have already held, the proceedings are proceedings to which rule (1) applies. Subrule 2(c) speaks of "the relief" sought by the applicant in the originating process. Consistently with the view I have taken as to the wide meaning of the terms "proceeding" and "originating process" in these rules, I am satisfied that no narrow meaning should be ascribed to the term "the relief". The relief which is sought in the summons, in my view, is the attendance for examination before this Court of the respondent, Mr Dwyer. That being so I have no difficulty in finding that a prima facie case for that relief has been made out in the affidavit and other material which has been placed before me. In my view, therefore, the requirements of O 8 r 2 are also complied with. Accordingly, I propose to make orders (1), (2) and (4) as asked in the amended notice of motion. I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.