Commissioner of Taxation v Zeitouni

YATES J: 1 The plaintiff, Barry Anthony Taylor, is the liquidator of JM World AU Pty Ltd (in liquidation) (the company). 2 Pursuant to an originating process dated 15 June 2022, Mr Taylor obtained orders, on 5 July 2022, granting leave to file and serve a summons for examination and orders for production (together, the documents) on Yeong Jeen Bak (also known as James Bak). Mr Taylor obtained similar orders in respect of Mr Bak's wife, Eun Hee Kim. The orders were made under s 596A of the Corporations Act 2001 (Cth). Mr Bak and Ms Kim are the directors of the company. The documents have now been issued by the Court. Each examination summons is returnable at 10.15 am on 26 September 2022. 3 Mr Bak and Ms Kim are the co-owners of a residential property in Killara, New South Wales. On 21 July 2022, the documents were served on Ms Kim at that property. At that time, an attempt was also made to serve the documents on Mr Bak. The attempt was unsuccessful. Ms Kim told the process server engaged on Mr Taylor's behalf that Mr Bak was currently in Korea (meaning, as I understand it, South Korea) and that there was no known date for his return to Australia. 4 Mr Taylor has filed an interlocutory process dated 25 August 2022 seeking leave, pursuant to r 10.44 of the Federal Court Rules 2011 (Cth) (the Rules), to serve the documents on Mr Bak as a person resident in a foreign country. He also seeks an order for substituted service of the documents, for reasons I will come to. I simply note at this point that it seems to be well-established that it is inappropriate for the Court to consider any application for substituted service of documents overseas unless leave for service outside Australia has first been given under Div 10.4 of Pt 10 of the Rules: Commissioner of Taxation v Zeitouni [2013] FCA 1011; 306 ALR 603 (Zeitouni) at [26] - [32]; Ford, in the matter of Careers Australia Group Ltd (in liq) v Mansfield [2022] FCA 173 (Ford) at [27]. 5 As O'Bryan J explained in Ford, the reason for this lies in the essential role of service in enlivening the Court's jurisdiction: 28 At common law, the Court's jurisdiction in actions in personam depends on a defendant's presence in the geographical jurisdiction of the Court (this Court's jurisdiction being Australia-wide). This common law position is, however, subject to statutory extensions to jurisdiction that provide for the service of process outside of the jurisdiction where there is some link between the forum and the subject matter involved: Re Deposit and Investment Co Ltd (1991) 30 FCR 463 at 464 per Lockhart J, citing Laurie v Carroll (1958) 98 CLR 310 (Laurie v Carroll) per Dixon CJ, Williams and Webb JJ (at 322-323). It is for this reason that an order for substituted service should not be made in relation to a person outside the jurisdiction who has not been the subject of an order for leave to serve outside of the jurisdiction. Such an order would, in effect, circumvent the requirement (codified by r 10.43) for the Court to be satisfied that it is appropriate to extend its jurisdiction to a person located overseas: Laurie v Carroll at 332. The power to order substituted service cannot be used as a way of effecting service outside the jurisdiction for want of any other power to do so: Park v Tschannen [2016] FCA 137; 341 ALR 452 (Park) at [10]-[11] per Edelman J, citing Southwell v Maladina [2002] FCA 802; 194 ALR 51 per Dowsett J; Wilding v Bean [1891] 1 QB 100 at 102; and Laurie v Carroll at 325. 6 The evidence before me is that Australia and the Republic of Korea are parties to a bilateral treaty known as the Treaty on Judicial Assistance in Civil and Commercial Matters between Australia and the Republic of Korea (Canberra, 17 September 1999) (the Bilateral Treaty). Australia and The Republic of Korea are also parties to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters 1965 (the Hague Convention). I note that the Republic of Korea has made certain declarations in relation to Arts 8, 10 and 15 of that Convention. 7 I am satisfied that it is appropriate to grant leave under r 10.44 of the Rules to serve the documents on Mr Bak in South Korea. However, in an affidavit made on 25 August 2022, Mr Taylor's solicitor, Mr Duggan, has deposed to his belief that service of the documents on Mr Bak under either the Bilateral Treaty or the Hague Convention would be impracticable in the circumstances of the present case. For one thing, Mr Bak's whereabouts in South Korea are not known. Without that information, there is no realistic prospect that Mr Bak can be served personally with the documents in that country. Thus, there would be no utility in Mr Taylor undertaking, at the present time, the procedural steps of obtaining a translation of the documents into the Korean language or applying under r 10.64 of the Rules for transmission of the documents to the Central Authority in South Korea for service. Further, even if Mr Bak's whereabouts in South Korea were presently known, the available material suggests that there could well be significant delays in effecting service. 8 In light of the evidence before me, I am satisfied that it is "not practicable", within the meaning of r 10.24 of the Rules, to serve the documents on Mr Bak in South Korea in accordance with either Div 10.5 or Div 10.6 of Pt 10 of the Rules: see Zeitouni at [66] - [70], and the cases there cited. Thus, an order for substituted service under r 10.24 is appropriate. Such an order can be made in the present circumstances: see Ford at [32], and the cases there cited. 9 The following information is known: (a) As the Managing Director of the company, Mr Bak used the email address james@mucota.com and james@chamenne.com. (b) Mr Bak has retained the Sydney city firm Vincent Young as his solicitors. (c) In a letter dated 29 November 2021, Vincent Young requested Mr Taylor to send all future correspondence concerning the company to them, rather than to Mr Bak. (d) In a letter dated 10 December 2021, Vincent Young informed Mr Taylor's solicitor, Mr Duggan, that they could accept service on behalf of Mr Bak and Ms Kim. (e) The address of the residential property in Killara, New South Wales which is co-owned by Mr Bak and at which Ms Kim resides. 10 Mr Taylor proposes that, pursuant to r 10.24 of the Rules, service of the documents be effected by: (a) leaving a copy of the documents at the residential property in Killara; (b) emailing a copy of the documents to Mr Bak's email addresses to which I have referred, as well as to Ms Kim's email address (which, I am informed from the Bar table, is available to Mr Duggan through other correspondence of which he is aware), and the email address of the solicitor at Vincent Young who is the contact given in the letters to which I have referred; and (c) delivering a sealed copy of the documents to Vincent Young at their Sydney City address. 11 I am satisfied that this proposal is likely to bring the documents to Mr Bak's attention, if he is not already aware of them. It is also appropriate that a copy of the orders made today be served at the same time. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Yates.