Darc Rasmussen v Eltrax Systems Pty Ltd & ors

Industrial Relations Commission (NSW)|1996-03-15|Before: Marks J, Mr P, Backman J

Industrial Relations Commission of New South Wales in Court Session

CITATION: Darc Rasmussen v Eltrax Systems Pty Ltd & ors (No. 4) [2006] NSWIRComm 225

FIRST RESPONDENT Eltrax Systems Pty Ltd (formerly Sulcus (Australia) Pty Ltd) (ACN 053 993 025)

FOURTH RESPONDENT John Picardi

FIFTH RESPONDENT Verso Technologies (Formerly Eltrax Systems Inc)

CATCHWORDS: Two conflicting Notice of Motions - applicant sought leave to proceed against non submitting foreign respondent -applicants solicitor effected service of 2nd amended summons through agent based in foreign country - applicants solicitor served motion via letter - fifth respondent argued no proper service of either, the Court had no jurisdiction & applicant's motion be dismissed - whether particular documentation furnished to Court in the appropriate form. Held: Applicant's motion upheld - need for evidence of proper service applies to 2nd amended summons only - effected according to the law of that country - internet publication reliable source of information - motion served with confirmation of receipt - position taken by respondent, that applicant must prove strictly questions of service and compliance with foreign law not acceptable in contemporary times - fifth respondent's motion dismissed.

Evidence Act 1995 Industrial Relations Act 1996 Industrial Relations Commission Rules 1996 LEGISLATION CITED: Legal Profession Act 1987 Supreme Court Act 1970 Uniform Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005

Castagna v Concercia Pell Mec SpA (40561 of 1992, unreported, 15 March 1996) Bell v Macquarie Bank Limited (no 4) (1999) 93 IR 191 Brown v Rezitis (1971-72) 127 CLR 157 Darc Rasmussen v Eltrax Systems Pty Ltd [2005] NSWIRComm 227 CASES CITED: Gosper v Sawyer (1984-1985) 160 CLR 548 MindShare Communications Ltd v Orleans Investments Pty Ltd [2000] FCA 521 Norsemeter Holdings AS v Pieter Boele (2) 2002 NSWSC 389 Rasmussen v Eltrax Systems Pty Ltd [2004] NSWIRComm 307 Sydney Water v Industrial Relations Commission of NSW [2004] NSWCA 436 Verso Technologies Inc v Rasmussen (2004) 135 IR 147

APPLICANT Ms K Nomchong SOLICITOR: Mr M Selinger Carroll & O'dea Lawyers LEGAL REPRESENTATIVES:

RESPONDENTS Mr P Newall of counsel SOLICITOR: Ms N Shaw Gadens Lawyers

32 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Darc Rasmussen v Eltrax Systems Pty Ltd & ors (No 4)

1 This interlocutory judgment arises out of proceedings instituted under s 106 of the Industrial Relations Act 1996 ("the Act") brought by the applicant, Darc Rasmussen, against five respondents. The first is Eltrax Systems Pty Ltd, the second, third and fourth are Christopher Ian Gribble, Jo-Ann Schlein and John Picardi respectively and the fifth is Verso Technologies Inc (formerly Eltrax Systems Inc). The proceedings are currently constituted by a second amended summons filed on 6 July 2005 pursuant to leave granted by Backman J in this Court, in a judgment delivered 5 July 2005, (see Darc Rasmussen v Eltrax Systems Pty Ltd [2005] NSWIRComm 227). In substance, the applicant alleges he was an employee of the first respondent. The second, third and fourth respondents were, at all relevant times, directors of the first respondent. The fourth respondent is alleged to have held himself out to be the Vice President of the fifth respondent. The fifth respondent is alleged to be the ultimate holding company of the first respondent and is incorporated in the United States of America. 2 As against the fifth respondent, the second amended summons alleges that it, together with the second, third and fourth respondents, was "closely and culpably associated with the unfairness arising out of or associated with" the applicant's contract of employment and also was a party to "a contract or arrangement or collateral arrangement" described as a share option scheme. It is alleged that the applicant was granted certain share options in the fifth respondent which would vest over time and be exercisable by the applicant at those later times and that, by reason of unfairness constituted by and following the termination of the contract of employment, the applicant was denied by the fifth respondent the right to exercise options which were to vest within certain periods referred to in the amended summons. 3 In addition to the judgment of Backman J, to which I have previously referred, these proceedings have also been the subject of consideration by a Full Bench of this Court in Verso Technologies Inc v Rasmussen (2004) 135 IR 147 ("Verso") and by Boland J in Rasmussen v Eltrax Systems Pty Ltd [2004] NSWIRComm 307. Much of the history of the proceedings may be found by reference to these earlier judgments. It is not necessary, for the purpose of this interlocutory judgment, that I refer to any of the factual background in detail. However, as will be made clear, it will be necessary to refer to the decision of the Full Bench cited above. 4 This interlocutory judgment deals with two conflicting notices of motion, one brought by the applicant and the other by the fifth respondent. Before considering them, I set out hereunder a number of the rules of this Court that are relevant to the determination of these proceedings. They are, respectively, rules 71, 82, 85, 89(5), 93(1) to 93(5), 98, 99, 105, 109, 112, 118 and 5 of the Industrial Relations Commission Rules 1996, and are as follows: Rule 71 Service Where a notice of motion is to be served on a person who has not entered an appearance and the time for entering an appearance has not expired, the notice must be served personally. Rule 82 Setting aside originating process etc (1) A tribunal may, on notice of motion filed by a respondent in accordance with subrule (2) by order: (a) set aside the originating process, or (b) set aside the service of the originating process on the respondent, or (c) declare that the originating process has not been duly served on the respondent, or (d) discharge any order giving leave to serve the originating process outside the State or confirming service of the originating process outside the State, or (e) discharge any order extending the validity for service of the originating process, or (f) protect or release property seized, or threatened with seizure, in the proceedings, or (g) declare that the tribunal has no jurisdiction over the respondent in respect of the subject matter of the proceedings, or (h) decline in its discretion to exercise its jurisdiction in the proceedings, or (i) grant such other relief as it thinks appropriate. (2) Notice of motion under subrule (1): (a) may be filed without entering an appearance, (b) must bear a note "The respondent's address for service is" and state the address, (c) must be filed within the time limited for entering an appearance. (3) The making of an application under subrule (1) is not to be treated as a voluntary submission to jurisdiction.

Rule 85 Directions where procedure wanting or in doubt (1) Where any person desires to commence proceedings or to take any steps in a particular case before a tribunal and: (a) the provisions of the Act and these Rules do not make any or adequate provision for a procedure to be followed and there is no established practice or usage of the Commission, ora difficulty arises or doubt exists as to the procedure to be followed, (b) a difficulty arises or doubt exists as to the procedure to be followed, the tribunal may give directions or make such orders with respect to the procedure to be followed as it considers necessary. (2) Directions may be given or orders may be made by the tribunal: (a) on its own initiative, or (b) on application by notice of motion by a party seeking such directions or orders. (3) Such application may be made ex parte, but must be served on such persons as the tribunal directs. (4) Such directions and orders are to be directed to providing a just, speedy and inexpensive determination of proceedings. (5) Proceedings commenced in accordance with such directions or orders are to be taken to be well commenced. (6) Steps taken in accordance with such directions or orders are to be taken to be regular and sufficient. Rule 89 Supplementary practice before Commission (5) Where: (a) there are no relevant provisions, and (b) there is no established practice, procedure or usage, and (c) there is no Rule, order, direction or Practice Direction in force, the practice, procedure or usage for the time being of the Supreme Court or, in the case of appeals, the practice, procedure or usage for the time being of the Court of Appeal or the Court of Criminal Appeal, as may be appropriate, is, as far as practicable, to regulate the practice, procedure or usage of the tribunal.

Rule 93 Service of Summons (1) Service of a summons, other than a summons to confer, under this Part must be effected in accordance with this Part unless a tribunal or the Registrar otherwise directs. (2) Service of a summons may be effected by handing the summons or a copy of the summons to the person named. (3) If, on tender of the summons to the person named, the person refuses to accept it, the summons may be served by putting it down in the presence of that person after the nature of the summons has been explained. (4) Where the person named in the summons is a party for whom a solicitor or an agent is specified in the proceedings, the summons may, with the consent of the solicitor or agent, be served on the person named by leaving it at the address for service. (5) Service of a summons on a corporation may be effected by serving the summons in accordance with subrule (2) or (3), as the case may require, on the mayor, chairperson or president, or on the general manager, clerk, secretary, treasurer, principal officer or other similar officer of the corporation or, where provision is made by or under any Act for service of a document on a corporation, by serving the summons in accordance with that provision.

Rule 98 Service of Process by Parties Except as otherwise provided by these Rules or unless the Registrar otherwise directs, service of all process, including interlocutory applications, must be effected by the parties.

Rule 99 Service of Originating Process An applicant must promptly and within the time and in the manner specified in this Part, serve a copy of the originating and interlocutory process on: (a) any person named as a respondent, and (b) where the application relates to an award or determination, the persons shown in the list maintained by the Registrar under Rule 40 (c) relevant to that award, unless the tribunal otherwise directs, and (c) such other persons as the tribunal may direct.

Rule 105 Service upon Corporations other than Industrial Organisations Service of process upon a corporation other than an organisation incorporated under the Act must be effected: (a) by leaving any document with the secretary or other principal officer of the corporation, or (b) by tendering any document to that secretary or principal officer after indicating its nature, or (c) by leaving any document with a person at the registered office of the corporation, or (d) where the corporation has filed an address for service, by posting any document to that secretary or principal officer at that address or by leaving it at that address, or (e) where the corporation has not filed an address for service, by posting any document to that secretary or principal officer at the registered office of the corporation, or (f) where provision is made by any other Act for the service of a document on the corporation concerned, by serving a copy of any document in accordance with the provision. Rule 109 Affidavit of Service (1) An affidavit of service must be filed by the applicant promptly after service of the originating process has been effected. (2) An affidavit of service must be filed by the appellant promptly after service of the appeal has been effected. (3) An affidavit of service may be filed in any other case.

Rule 112 Service out of Australia (1) This Rule applies where, pursuant to section 162 (2) (f) or otherwise, any process or document is to be served outside the State and outside Australia. (2) Process or documents may be served outside Australia, but must bear a note in the appropriate form. (3) Where process served under this Rule requires or permits the filing of a notice of appearance, the period for entry of such an appearance will be 21 days after service, unless the tribunal, on application allows a shorter period. (4) Where there is no appearance by the defendant or respondent to any process served under this Rule, the applicant must not proceed except by leave of the tribunal before which the proceedings are brought.

Rule 118 Irregularity An affidavit may, with the leave of the tribunal, be used notwithstanding any irregularity in its form.

Rule 5 Forms (1) A reference to a form in these Rules is a reference to a form in Schedule 2 of the Rules. (2) Schedule 1 of these Rules applies unless the tribunal or the Registrar otherwise directs. (3) If a form: (a) is to be completed in a specified manner, or (b) requires specified information to be included in, attached to or furnished with the form, the form is not duly completed unless it is completed in that manner and unless it includes, or has attached to or furnished with it, that information. (4) A document which is not duly completed may, with the approval of the tribunal or the Registrar, be accepted for filing at the Registry. (5) The Registrar, before accepting a document which is not duly completed for filing, may require the person on whose behalf the document is being filed to give an undertaking to the tribunal that the document will be resubmitted in the proper form within a period as specified by the Registrar.

5 The motion filed by the applicant sought the leave of the Court to proceed against the fifth respondent on the basis that the fifth respondent had been served with the second amended summons and had not filed a notice of appearance (Rule 112(4)). 6 The fifth respondent filed a notice of motion under Rule 82, so as to avoid being treated as having voluntarily submitted to the jurisdiction of this Court (see Rule 82(3)), seeking orders that the applicant's notice of motion be dismissed, that if there had been service of the second amended summons it be set aside, that a declaration be made that there had not been service of the second amended summons on the fifth respondent and that, in the alternative, leave should not be granted to the applicant to proceed against the fifth respondent. Finally, the respondent's notice of motion sought an order declaring that this Court has no jurisdiction over the fifth respondent in the proceedings. 7 There are a number of matters of controversy raised by the competing notices of motion. Essentially, they go to the following matters: (1) Whether the applicant is able to prove service of the second amended summons on the fifth respondent. (2) Whether the applicant has served the second amended summons on the fifth respondent. (3) Whether any such service should be set aside. (4) Whether this Court has jurisdiction over the fifth respondent with respect to the subject matter of the proceedings. (5) Whether the Court should decline, as a matter of discretion, to exercise jurisdiction over the fifth respondent in the proceedings. (6) Whether leave should be granted to the applicant to proceed against the fifth respondent. 8 It is convenient to begin by discussing the question of service of the second amended summons on the fifth respondent. 9 In the Full Bench decision in Verso, previously referred to, the Court made a number of observations which relieve me of the burden of considering a number of issues relating to the rules of this Court and relating to the proper approach to be taken to the resolution of the controversy between the parties. Without, hopefully, creating any disservice to the excursive analysis undertaken by the members of the Full Bench, I would extract the following principles as impacting upon the resolution of these proceedings: (1) To subject a non-resident, non-submitting foreign respondent to the jurisdiction of this Court "is a serious matter"(at [50]). Accordingly, evidence of "proper service is essential" (at [56]). (2) Rule 112 of the Rules of this Court are subject to the more detailed particularity contained within the relevant rules governing the procedure in the Supreme Court of New South Wales by reason of Rule 89(5). Those rules have, of course, been overtaken by the Uniform Civil Procedure Rules 2005 . Accordingly, it is appropriate to have regard to the provisions of those rules with respect to the mode of service of originating and other process outside Australia. (3) The reference to a note "in the appropriate form" in Rule 112(2) is such a note to be found in the, now, Uniform Civil Procedure Rules . (4) It will be necessary for the applicant to demonstrate that the second amended summons was served within time, bore the note required by Rule 112(2), was served in accordance with the laws applicable in the place of service and, if service is to be effected at the registered or other relevant office of the fifth respondent, that service was so effected. (5) It is not sufficient to demonstrate that the fifth respondent knew or ought to have known of the proceedings. What is necessary is to prove "proper service". 10 By Rule 11.6 of the Uniform Civil Procedure Rules:

"A document to be served outside Australia need not be personally served on a person so long as it served on the person in accordance with the law of the country in which service is effected."

Accordingly, it will be necessary for the applicant to demonstrate service in accordance with the laws of the United States, or that part of the United States, in which service was purported to be effected. 11 There is a reference in Rule 11.3 of the Uniform Civil Procedure Rules to a requirement to serve, with any originating process intended to be served, on a defendant outside Australia "a notice to that effect". 12 I now turn to the evidence upon which the applicant relied in seeking to establish service of the second amended summons on the fifth respondent and the admissibility of that evidence. 13 An affidavit of Helen-Anne MacAlister, sworn 24 December 2004, deposes to the fact that Ms MacAlister was then an employed solicitor in the law firm Caroll & O'Dea, solicitors for the applicant, with conduct of the proceedings. She said that she had retained "agents" in the U.S.A. inter alia to confirm the name and address of the fifth respondent. Annexed to that affidavit is a copy of a document issued by the Minnesota Secretary of State on 29 September 2000 which contains the signature of Juliet M. Reising, Chief Financial Officer and Secretary of Eltrax Systems Inc, concerning a change of name of that corporation to Verso Technologies, Inc. An accompanying document, under the facsimile signature of Cathy Cox, Secretary of State of the State of Georgia, certifies that the document to which I have referred was a true and correct copy of documents filed under the name of Verso Technologies, Inc, which was formed in the State of Minnesota. That document appears to be dated 14 June 2004. There is also annexed to the affidavit of Ms MacAlister a "Certificate of Good Standing" issued under the hand of the Secretary of State of the State of Minnesota certifying that Verso Technologies, Inc was formed under the laws of Minnesota and that it had changed its name from Eltrax Systems Inc. That certificate was issued on 20 October 2004. 14 Included in the documentation issued by the relevant Secretaries of State of Georgia and Minnesota were details of the registered office of the fifth respondent in each state and, in the case of the State of Georgia, a reference to Juliet Reising as being the Chief Financial Officer and Secretary. 15 Affidavit evidence of Michael Selinger, a solicitor in the employ of Caroll & O'Dea who now has day-to-day conduct of the proceedings on behalf of the applicant following Ms McAlister's commencement of maternity leave in January 2006, was to the effect that "agents" in the U.S.A. were directed by the applicant's solicitors to effect service of the second amended summons on the fifth respondent at three registered addresses, which are respectively in the States of Georgia and Minnesota. 16 There are annexed to one of Mr Selinger's affidavits copies of documentation received by the applicant's solicitors, which were said to demonstrate service of the second amended summons on the fifth respondent. The originals of that documentation were also tendered into evidence. I shall now describe briefly that documentation because counsel for the fifth respondent submitted that it was not in a form that was properly admissible into evidence in these proceedings. 17 The first set of documents consists initially of a document entitled "affidavit of process server" as sworn by "Deputy G.M. Watson" who is described as a "sheriff/deputy sheriff of Cobb County, Georgia, where the fifth respondent, Verso Technologies, Inc's principal executive office is found being at 400 Galleria Parkway, SE Atlanta, Georgia." Deputy Watson is described as a citizen of the U.S.A., an officer of the Court of the State of Georgia and authorised to act as a process server pursuant to "Georgia General Assembly Unannotated Code 9-11-4." That affidavit states that "process has been served in accordance with the laws of the State of Georgia in the United States of America." Deputy Watson deposes that he served a number of documents, being a letter from the applicant's solicitors, the second amended summons for relief, a form 12A certificate issued under the Legal Profession Act 1987, form 13A notice to respondents served outside Australia and an affidavit verifying the second amended summons for relief by serving them on Juliet Reising, the CFO for the fifth respondent on 19 July 2005. The affidavit states that it was sworn before a notary public. 18 A further document dated 19 July 2005 is entitled "Sheriff's Entry of Service". It refers to the applicant as plaintiff and Eltrax Systems Pty Ltd et al as defendant and refers also to service on Verso Technologies, Inc by leaving a copy with Juliet Reising, CFO. 19 The affidavit of process server to which I have referred is not entitled as having been prepared and sworn by reference to these proceedings. It does not contain the heading of these proceedings nor is it in a form contained within the forms referred to in Schedule 1 to the rules of this Court. It was submitted on behalf of the fifth respondent that, as such, the affidavit should not be admitted into evidence and, in any event, there were other matters going to its admissibility into evidence for the purpose of proving service. I shall return to these arguments shortly. 20 An affidavit of process server, in the same form as that sworn by Deputy Watson, was also sworn by J. Ansaar on 18 July 2005, again witnessed by a notary public. That deponent is also a sheriff/deputy sheriff but of Fulton County, Georgia and otherwise contains the same material. Copies of the same documents were said to have been served on the fifth respondent in accordance with the laws of the State of Georgia by leaving them with Lynn MacDonald who is the civil process administrator of CT Corporation System, at 1201 Peachtree Street, Atlanta, Georgia on 18 July 2005, this being the registered office disclosed in the Certificates issued by the Secretary of State for Georgia to which I have earlier referred. Copies of the same documents, as were referred to in dealing with the affidavit of Deputy Watson, were also said to have been served on the fifth respondent by that means. 21 A document entitled "Personal Service, Foreign Process" issued by Jeffery Haas, a deputy sheriff of Hennepin County in the State of Minnesota stated that a number of documents, being the same documents as referred to as having been served by Deputy Watson, were served on Verso Technologies, Inc at 405 Second Avenue, Minneapolis personally by leaving them with Lisa Uttech, said to be an authorised agent, on 15 July 2005. The document is said to have been sworn by Deputy Sheriff Haas before a notary public. 22 There is exhibited to one of Mr Selinger's affidavits a copy letter, addressed to Ms MacAlister, dated 3 August 2005 from Hoefle, Pheonix and Gormley, PA a firm of attorneys at law whose office is in New Hampshire. That letter states that service has been effected on the fifth respondent at three addresses, (being the ones previously referred to), and that the documents being the second amended summons for relief, the form 12A certificate, the form 13A notice and the affidavit verifying the summons were served "in accordance with the laws in each of the states that they served…." 23 Mr Selinger furthermore exhibited an extract said to be obtained by him being part of the "Uniform Foreign Country Money-Judgments Recognition Act" of the State of Minnesota that appears to allow the enforcement of a foreign judgment of a court of a foreign state, subject to exceptions, which it would not be profitable to consider at this stage. 24 There have been contained within the affidavit of Ms MacAlister documents that purported to be extracts of the laws of the States of Georgia and Minnesota governing the service of documents on a corporation within those states 25 The extracts were said to have been provided by the "agents". The document that is said to represent the unannotated code of the Georgia General Assembly, which includes a facsimile of the seal of the State of Georgia and contains material with respect to the service of summons. Process is to be served by the Sheriff of the county where the action is brought or where the defendant is found and may be served on a corporation by delivering a copy "to the president or other officer of the corporation, secretary, cashier, managing agent, or other agent thereof…." 26 Interestingly, under the heading "Notes of Duty to Avoid Unnecessary Cost of Service of Summons" there is a reference to a section of the Official Code of Georgia Annotated as requiring "certain parties to co-operate in saving unnecessary costs of service of the summons and the pleading. A defendant located in the United States who, after being notified of an action and asked by a plaintiff located in the United States to waive service of a summons, fails to do so will be required to bear the cost of such service unless good cause be shown for such defendant's failure to sign and return the waiver…. It is not good cause for a failure to waive service that a party believes that the complaint is unfounded, or that the action has been brought in an improper place or in a court that lacks jurisdiction over the subject matter of the action or over the person or property. A party who waives service of the summons retains all defenses and objections (except any relating to the summons or to the service of the summons), and may later object to the jurisdiction of the court or to the place where the action is being brought." Whilst this notice is arguably irrelevant for present purposes, I would interpolate that it seems to me to be an eminently sensible, cost-saving measure, which should be commended for consideration within New South Wales. 27 The extract from the Minnesota statutes 2003 appears to have been printed from a website "www.revisor.leg.state.mn.us…." It provides for service of process on a registered agent. 28 Counsel for the fifth respondent submitted that the Court could not be assured that the extracts from the relevant codes referred to were genuine and could appropriately be taken into account for the purpose of these proceedings. Mindful of the need to avoid litigating unnecessary matters, especially the laws of the States of Georgia and Minnesota, I suggested that the solicitors for each of the parties should endeavour to co-operate at least to reach agreement as to what was said by each of the State laws with respect to the service of documents. Mr Selinger said in affidavit evidence that he identified two internet websites being, respectively, that of the Legislative Assembly of the State of Georgia, which contained portions of the unannotated code of Georgia including particular sections referable to service, which he nominated. With respect to the laws of Minnesota, he identified the website of the Legislative Assembly of that state. The fifth respondent's solicitor, Ms Shaw, of the law firm Gadens wrote to Mr Selinger on 22 June 2006 stating, inter alia, that she was not qualified in the States of Georgia and Minnesota and therefore could not comment on those laws and did not "know with any certainty whether those laws contained the laws of Georgia and Minnesota, although they appear to do so." Ms Shaw repeated the assertion made by counsel for the respondent during the course of the hearing that the applicant bore the onus of satisfying this Court concerning the content of any foreign laws in accordance with s 174 of the Evidence Act. 29 Finally, in the context of the factual background to these interlocutory proceedings, it should be noted that the applicant's solicitors served the notice of motion seeking leave to proceed on the fifth respondent by way of letter addressed to Juliet Reising, dated 2 June 2006. The letter enclosed the notice of motion and an affidavit of Mr Selinger filed 21 February 2006 and advised the fifth respondent that the motion was to be heard before me on 19 June 2006. That notification was forwarded to the fifth respondent by pre-paid post, facsimile transmission and email. A facsimile confirmation was received by Mr Selinger on 2 June 2006. An email delivery confirmation notification was received by Mr Selinger the same day, as well as an email from juliet.reising@verso.com to Mr Selinger to the effect that his email message that day "was read on 2/06/2006 9.10pm". The subject of that email confirmation was said to be "service of notice of motion - Rasmussen v Verso Technologies Inc".

Threshold Issue 30 The fifth respondent raised a threshold issue, which it said precluded the Court from proceeding to deal with the applicant's motion. It was asserted that the applicant was unable to demonstrate that the motion by which it seeks leave to proceed against the fifth respondent had been properly served. It was submitted that Rule 99(a) mandated the service of the motion on the fifth respondent and as such displaced Rule 11.4(1) of the Uniform Civil Procedure Rule, which does not require service of the motion on the foreign defendant. It was said that any such service would have to be effected in accordance with the laws of the place where the service was said to have been effected and, relying on the Full Bench decision in Verso, it was necessary that proper service be carried out. I respectfully disagree. Verso was concerned only with the service of initiating process. It was not concerned with the service of any motion by way of interlocutory application following the initiation of proceedings. Verso applied observations of the New South Wales Court of Appeal in Castagna v Concercia Pell Mec SpA (40561 of 1992, unreported, 15 March 1996). Castagna was clearly only concerned with the service of an originating process and the judgment of Mahoney P extracted in the Full Bench judgment in Verso makes this clear. 31 Accordingly, assuming that the proceedings had been validated by proper and appropriate service upon the fifth respondent, service of the notice of motion need only be accommodated in accordance with Rule 105. Rule 105(e) would appear to apply because the fifth respondent has not filed an address for service and the document has been posted as attested to by Mr Selinger. Furthermore, the fifth respondent, through its Chief Financial Officer, acknowledged receipt of the documentation and the fifth respondent appeared pursuant to a notice of motion filed by it seeking an order that the applicant's notice of motion be dismissed.

32 It would be absurd, in my opinion, for the applicant to be put to any stricter proof of service or to be compelled to serve the notice of motion in some other time-consuming and, no doubt, costly manner in circumstances where it is abundantly clear that the notice of motion has been received by the fifth respondent who has retained solicitors and counsel with a view to having it dismissed. These would be perfect circumstances in which to apply the provisions of s 70 of the Uniform Civil Procedure Act 2005 that, unfortunately, do not appear to be reproduced in the Industrial Relations Act 1996. S 70 is in the following terms: S 70 Informal proof and admissions (cf Act No 52 1970, section 82) (1) At any stage of the proceedings, the court: (a) may, by order, dispense with the rules of evidence for proving any matter that is not bona fide in dispute, also with such rules of evidence as may give rise to expense or delay, and (b) without limiting the generality of paragraph (a), may, by order, dispense with the proof of handwriting, documents, the identity of parties or parcels of land, or of authority, and (c) may, by order, require any party (not being a person under legal incapacity) to make admissions with respect to any document or to any question of fact, and (d) in the case of a party's refusal or neglect to make any admission required under paragraph (c), may, unless of the opinion that the refusal or neglect is reasonable, order that the costs of proof occasioned by the refusal or neglect are to be paid by the party. (2) An admission made under subsection (1) (c): (a) is to be for the purpose of the proceedings in which it is made and for no other purpose, and (b) is to be subject to all just exceptions, and (c) may, with the leave of the court, be amended or withdrawn. 33 That s 70 (formerly s 82 of the Supreme Court Act 1970) may be used appropriately in circumstances where a party refuses to concede the obvious was the subject of comment by Einstein J in the Supreme Court of New South Wales in Norsemeter Holdings AS v Pieter Boele (2) 2002 NSWSC 389 at [5], albeit in the context of the possibility of a failure to concede the terms of the statute of a foreign country. 34 The fifth respondent's preliminary point is rejected accordingly. 35 It is now necessary to deal with the substantive matters raised by the notices of motion.

The appropriate law governing service in the United States "….just an old sweet song keeps Georgia on my mind" (with apologies to Hoagy Carmichael) 36 The fifth respondent submitted that it was necessary for the applicant to show that purported service of the second amended summons was made in accordance with the law of the places in which it is asserted that that service occurred. The Full Bench in Verso proceeded on the basis that it was necessary for the applicant to adduce evidence that service occurred in accordance with the laws of the foreign country. As I have already pointed out, the applicant sought to rely on the evidence of Mr Selinger as to information furnished by him by an "agent" in the United States. The applicant also relied on statements made in the affidavits of the deputy sheriff to the effect that service was effected in accordance with the laws of the States of Georgia and Minnesota and relied on information obtained from two websites, which were described by Mr Selinger in affidavit evidence. 37 S 174 of the Evidence Act 1995 deals with the manner in which evidence may be adduced of a statute of a foreign country. S 174 is in the following terms: S 174 Evidence of foreign law (1) Evidence of a statute, proclamation, treaty or act of state of a foreign country may be adduced in a proceeding by producing: (a) a book or pamphlet, containing the statute, proclamation, treaty or act of state, that purports to have been printed by the government or official printer of the country or by the authority of the government or administration of the country, or (b) a book or other publication, containing the statute, proclamation, treaty or act of state, that appears to the court to be a reliable source of information, or (c) a book or pamphlet that is or would be used in the courts of the country to inform the courts about, or prove, the statute, proclamation, treaty or act of state, or (d) a copy of the statute, proclamation, treaty or act of state that is proved to be an examined copy. (2) A reference in this section to a statute of a foreign country includes a reference to a regulation or by-law of the country. 38 The applicants relied on s 174(1)(b). It was asserted that, at the least, the information printed from the website contained an adequate and appropriate reference to the relevant statutory basis dealing with the service of documents in the States of Georgia and Minnesota. On this basis, it was asserted that this would be a reliable source of information. 39 The fifth respondent submitted that it would not be appropriate to rely on or have regard to information contained within the websites. This was particularly so because, in the case of the Georgia General Assembly website, the following caveat occurs: "While every effort was made to ensure the accuracy and completeness of the unannotated Georgia Code available on the Georgia General Assembly's website, the unannotated Georgia Code is not official and Georgia General Assembly will not be responsible for any errors or omissions which may occur in these files…." It was submitted that on this basis, it would be unsafe to rely on the material found at the website. 40 Despite the caveat that appears on the Georgia General Assembly website, in my opinion it is appropriate for a court to rely on that publication on the basis that it is a reliable source of information. In a world where, for some considerable time, websites both within Australia and outside Australia have been utilised as a valuable source of legal research (and obviously much more widely), it would be nonsensical for a court to ignore, at least on a prima facie basis, information which is contained within an ostensibly legitimate website that professes to have been authorised by a legislature. Indeed, in MindShare Communications Ltd v Orleans Investments Pty Ltd [2000] FCA 521, Katz J in the Federal Court of Australia was able to be satisfied as to the provisions of a Hong Kong ordinance by accessing a named website, presumably being research undertaken independently of submissions made by the parties and in the absence of any other evidence provided for in s 174 of the Evidence Act (see [37]). 41 The fifth respondent also submitted, as was obvious from the correspondence from Gadens Solicitors, that it would be unsafe for anyone other than a lawyer licensed to practise in the States of Georgia or Minnesota to endeavour to read, comprehend and apply the relevant extracts from the statutes. I disagree. The statutes are, in my opinion, framed in clear and precise terms, certainly to enable any person competent in the English language and qualified as a lawyer to understand them in the context of determining what requirements are created and imposed in order to effect service of process. 42 Whilst it is clear from Verso and the New South Wales Court of Appeal decision in Castagna that service needs to be effected in a proper manner and that evidence of this is required, in each of those proceedings there were clear instances where there had been a failure to effect proper service. Such a failure was apparent from the material filed by the applicant/plaintiff in each case. Indeed, in Castagna, the deficiencies in service had not been pointed out to the trial judge and were only raised on appeal. In these proceedings, the fifth respondent has not asserted positively that the documents were not served in the manner disclosed in the evidence adduced by the applicant, nor has the fifth respondent asserted positively that there has been a failure to comply with the relevant Georgia and Minnesota State Statutes. The position taken by the fifth respondent is that the applicant is required to prove each of these matters strictly and the attack mounted by the fifth respondent has substantially gone to whether or not the relevant and necessary evidence has been brought before the Court in an appropriate manner. Whilst this approach is one that was adopted by defendants/respondents in the late 1950's and early 1960's, when I first became associated with the practice of law, it is not an approach that seems to me to be condoned in contemporary times in relation to the conduct of litigation. S 56 of the Civil Procedure Act 2005 reflects contemporary attitude to the conduct of litigation. It is in the following terms:

S 56 Overriding purpose (cf SCR Part 1, rule 3) (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. (4) A solicitor or barrister must not, by his or her conduct, cause his or her client to be put in breach of the duty identified in subsection (3). (5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs. 43 S 56 is complemented by provisions such as s 70 of the same Act, the terms of which I have earlier set out. 44 Whilst I do not apprehend that s 70 of that Act has been adopted by this Court within its rules, Rule 84 of the Rules of this Court expresses an approach that is in similar terms to that contained within s 56 of the Civil Procedure Act. Rule 84 is in the following terms:

Rule 84 Directions generally (1) A tribunal may generally give all such directions and do all such things as in its opinion will enable expense or delay to be reduced and will help to achieve a prompt hearing of the matters at issue between the parties and will contribute to the expeditious conduct of the proceedings and the just determination of the matter or dispute and the equitable disposal of proceedings. (2) Without limiting the generality of subrule (1) or the powers in section 162, a tribunal may: (a) make orders for the purpose of defining the matters in dispute and the issues to be decided, or (b) direct the mode in which issues may be proved, or (c) give directions with regard to the production of documents and the making of admissions (subject to all just exceptions) with respect to any document or to any question of fact, or (d) dispense with the formal proof of any matter which is not genuinely in dispute. (3) A tribunal may exercise its powers under this clause at any time after the commencement of the proceedings and on its own motion or on the application of any party. 45 In my opinion, although it is necessary for the Court to be satisfied that service of the second amended summons was effected in a proper and appropriate manner, it is inappropriate for the fifth respondent to have endeavoured to put the applicant to strict proof of matters in the absence of any submission that there has not been proper and appropriate service of the second amended summons. A further example is provided by the attitude of the fifth respondent to the form and contents of the affidavits of service of the deputy sheriffs. 46 Complaint was made about the proof of the matters asserted in each of the affidavits by the deputy sheriffs. If the submissions of the fifth respondent were taken to their extreme, it would have been necessary for each of the deputy sheriffs to have given evidence in the proceedings concerning all of the matters referred to in their affidavits of service. The cost of doing so, whether by taking evidence on commission, videoconference or flying each of the deponents out to Australia for the purpose of taking oral evidence, is obviously prohibitive. Again, in the absence of any justifiably advanced view that there was no service effected in the manner set out in the respective affidavits of service, it would be inappropriate, in my opinion, to seek to put the applicant to the expense of any further proof. Schedule 1 to the Rules of this Court refers to a number of forms, which are set out in Schedule 2. There is a requirement contained within Schedule 1 for the forms to be set out in the manner referred to in the forms contained in Schedule 2. Each of the forms is required to include the plaint number and other relevant material. Form 44 is a pro forma affidavit of service. That form sets out the name of the tribunal, the plaint number, the names of the parties and the like. These are matters that are not contained within the form of the affidavit of service signed by each of the deputy sheriffs. However, each of those affidavits of service is exhibited to the affidavit of Mr Selinger, which clearly contains all of the material required in a form by reason of the combined provisions of Schedules 1 and 2. In this way, it is arguable that it is not necessary that the affidavits of service strictly comply with the provisions of form 44. In any event, even if they do not, I would dispense with any requirement that they so strictly comply because, firstly, it is clear from the affidavits of service that they relate to these proceedings and secondly, the requirement that fresh affidavits of service be sworn making the cosmetic changes necessary to comply strictly with form 44 would involve undue expense and undue delay in the determination of the substantive proceedings. I therefore formally dispense with any such requirement, to the extent that such dispensation is necessary. 47 I am satisfied, based on the evidence provided in the affidavits of service sworn by each of the deputy sheriffs that there has been, in each case, service of the second amended summons on the fifth respondent in accordance with the laws of the States of Georgia and Minnesota respectively. I am satisfied that in addition to service of the second amended summons, there has been service of a note in the appropriate form referred to in Rule 112(2) of the Rules of this Court. Furthermore, I am satisfied, for the reasons that I have given, that such service has been proven. 48 Nothing has been advanced on behalf of the fifth respondent that would lead me to conclude that such service should be set aside for any reason.

49 It is now necessary to consider the applicant's motion that he be granted leave to proceed against the fifth respondent. Again, I am relieved from the obligation to set out the relevant principles in any detail, they having been considered in a comprehensive manner by a Full Bench of the Court in Bell v Macquarie Bank Limited (no 4) (1999) 93 IR 191. 50 For present purposes, I observe the following principles may be distilled from the Full Bench decision referable to a consideration concerning the grant of leave under Rule 112(4): (1) The applicant must demonstrate that he has a "good arguable case" against the fifth respondent. (2) The applicant must show to that standard that there is a contract of arrangement, or any related conditional collateral arrangement involving the applicant and the fifth respondent under which work is performed in an industry "in and of" New South Wales. (3) It is sufficient if the applicant demonstrates to that standard "the existence of an arrangement which is collateral to another contract or arrangement" whereby work is performed in an industry "in and of" New South Wales. This is sufficient to establish the necessary territorial connection with New South Wales. (4) The applicant may rely on "either one contract or arrangement whereby work is performed to which both the intra jurisdictional and extra jurisdictional respondents are party, or ….the extra jurisdictional respondent is party to a related collateral arrangement…." which was in turn related to a contract of employment with the necessary territorial connection with New South Wales. (5) The applicant must demonstrate that there is a serious issue to be tried. 51 In these proceedings, the applicant alleges that it was a term and condition of his contract of employment with the first respondent that he be entitled to participate in the stock option plan of the fifth respondent, and that stock options were, in fact, granted to him. It is said that his inability to access the share options that were granted to him because of the circumstances of the termination of his employment by the first respondent creates "a serious issue to be tried" before this Court. Furthermore, it is argued by the applicant that the stock option plan is collateral to his contract of employment with the first respondent. That contract of employment is for work to be performed by him for the first respondent in New South Wales and therefore bears the necessary territorial connection. 52 The fifth respondent submitted that it was not amenable to the jurisdiction of this Court under s 106 of the Act because the stock option plan could not be varied by the Court under s 106, relying on the decision of the High Court of Australia in Gosper v Sawyer (1984-1985) 160 CLR 548. In those proceedings, an employee sought relief from the trustees of a superannuation fund, the membership of which was compulsory by reason of his employment. The proceedings sought relief under a predecessor provision of s 106 of the Act. The trustees of the fund all resided in Victoria and the fund was created under, and was subject to, the laws of Victoria. Proceedings in the High Court concerned the question of whether there was power in the then Industrial Commission of New South Wales to order service of the process in the State of Victoria pursuant to the provisions of the Service and Execution of Process Act 1901 (Commonwealth). S 11(1)(b) of that Act restricted entitlement to serve proceedings outside New South Wales to circumstances where they concerned a contract that was made or entered into within New South Wales. The High Court held that the application brought by the employee, the effect of which was to seek to avoid or vary the trust deed, was not within s 11(1)(b) and, accordingly, there was no power in the Industrial Commission to order service on the trustees of the fund in Victoria. Gibbs CJ, Wilson and Dawson JJ in a joint judgment held that the Commission had power to avoid or vary the contract of employment but not the trust deed by which the superannuation fund was established. 53 In a joint judgment, Mason J (as His Honour then was) and Deane J, distinguished three contracts or arrangements which might arguably fall within the provisions of the section. The first was the actual contract of employment. The trustees of the superannuation fund were not parties to that contract. The second was described as the "arrangement" between the applicant and the trustees of the fund pursuant to which the employee became a member of the fund. It was said that this might be a collateral arrangement relating to the employment contract. The third was said to be an arrangement "which is embodied in the terms of the trust deed and pursuant to which the Fund was established and upon the terms and conditions of which its assets are held and are to be applied. It is also arguable that that was such a "collateral arrangement"." (At p. 567). Their Honours held that it was this third arrangement as characterised that was the subject of the proceedings brought by the applicant, and this was outside the provisions of s 11(1)(b) because that arrangement was not a contract made or entered into in New South Wales. 54 The claim brought by the applicant in these proceedings is, however, relevantly different. It is based on a jurisdictional connection of the kind upheld by the Full Bench of this Court in Bell v Macquarie Bank Limited (No. 4). That is, it is based on a "contract or arrangement, or any related conditional collateral arrangement" which involves the applicant and the fifth respondent in which work is performed in an industry "in and of" New South Wales. (See at p. 203). It is on this basis that the applicant asserts that the fifth respondent is a party to a contract that has a territorial connection with New South Wales. Indeed, this formulation was one of those not prohibited by the reasoning of the High Court of Australia in Gosper v Sawyer. Certainly, the basis for asserting territorial nexus is not confined in the way in which the applicant had formulated his case in Gosper v Sawyer. 55 Furthermore, the fifth respondent is sought to have been joined by the applicant in these proceedings on the basis that it was the ultimate holding company of the first respondent, and was culpably involved in the unfairness alleged in the proceedings against the other respondents. Such an assertion falls within well established principles established in Brown v Rezitis in the High Court of Australia (1971-72) 127 CLR 157. 56 It was also submitted on behalf of the fifth respondent that the proceedings were, in reality, proceedings for enforcement of the applicant's contract of employment with the first respondent. It was said that "this is clearly a thinly disguised breach case", which is one outside the s 106 by reason of the decision of the New South Wales Court of Appeal in Sydney Water v Industrial Relations Commission of NSW [2004] NSWCA 436. However, as against the fifth respondent the applicant claims benefits under the share option plan that would not otherwise be available to him and upon which he relies for an order of variation. This is clearly outside a claim restricted to breach of contract.

Appropriate Forum 57 The fifth respondent submitted that the appropriate forum to deal with any litigation concerning the terms of the stock option plan is a court in Minnesota, that being the place of the law governing the plan. However, such an argument ignores the basis upon which it is arguable that jurisdiction exists under s 106 to make an order in appropriate circumstances with respect to the stock option plan limited, of course, to the circumstances of the applicant. The basis upon which any such argument may be raised is that which has previously been discussed and which is in turn based upon observations of the Full Bench in Bell v Macquarie Bank (No. 4), to which reference has earlier been made. The fifth respondent's submissions in this regard are rejected.

Inconvenience and annoyance 58 It is also necessary to consider these matters when determining whether leave should be granted. The fifth respondent asserted that it would be put to "substantial inconvenience and expense" if it were forced to defend the proceedings before this Court. No evidence was adduced on behalf of the fifth respondent with respect to this matter. In cross-examination, Ms Natalie Shaw, the fifth respondent's solicitor, who also represents the first to fourth respondents, said that she obtained instructions from the first respondent from a Mr Robert Hussle (referred to in the transcript as Hassell). Indeed, Mr Hussle swore to a verified list of documents filed on behalf of the first respondent as defendant in concurrent Supreme Court proceedings initiated by the applicant based on a breach of contract. So much appears from a letter from the applicant's solicitors addressed to Ms Shaw dated 22 June 2006. Mr Hussle's address was given as being with a law firm practising in Atlanta, Georgia. Accordingly, it may be perceived that Ms Shaw is receiving instructions from the first respondent from a person or persons residing in Atlanta, Georgia. To this extent, the provision of instructions from Atlanta, Georgia by the fifth respondent would not unduly exacerbate any inconvenience or the incurring of costs currently being experienced by the first respondent. These facts would tend to negative any suggestion, made without reference to any particular evidence by the fifth respondent, that costs and inconvenience would be factors to be taken into account in determining whether to grant leave.

Conclusions as to Leave 59 It follows, from the matters to which I have referred, that I am of the opinion that the applicant has established, as against the fifth respondent, that he has a good arguable case and that the relevant jurisdictional nexus exists to enable the claim to be dealt with. I am further satisfied that the applicant has demonstrated service in accordance with the relevant principles. Furthermore, it cannot be said that matters going to the convenience of the forum and matters concerning inconvenience, annoyance and costs would preclude the grant of leave. I should also state, for completeness, that having regard to the substance of the complaints made by the applicant in the summons, and, dealing with those complaints only by reference to what is contained in the summons, there is, in my opinion, a serious issue to be tried with respect to the claim which the applicant seeks to bring against the fifth respondent. 60 Finally, the fifth respondent submitted that the applicant had considerably delayed the prosecution of the proceedings and that this delay was of such magnitude that he should be denied the opportunity of proceeding against the fifth respondent. The history of the matter is, as I have earlier stated, set out in the judgments of the Full Bench, Boland J and Backman J. In particular, Boland J discussed the question of delay in some detail, observing that whilst the applicant had failed to pursue the matter for some months, His Honour was not satisfied that this would prejudice the grant of leave to amend the summons at that stage. Apart from this period, which is described in some detail in the judgment of Boland J, I observe that the proceedings were further delayed by reason of the appeal process culminating in the judgment of the Full Bench in Verso and by the need to further amend the proceedings following the decision the New South Wales Court of Appeal in Sydney Water, previously referred to. In all the circumstances, whilst I observe that the proceedings have been greatly delayed, the responsibility for this cannot be sheeted home solely to the applicant. There has not been, in my opinion, sufficient delay to warrant, either as a single consideration or conjointly with other matters, the declining to grant leave to the applicant to proceed against the fifth respondent. 61 For all these reasons, I am of the opinion that it is appropriate to grant leave to the applicant under Rule 112(4) to proceed against the fifth respondent and leave is granted accordingly. 62 It follows that the applicant's motion is upheld and that of the fifth respondent is dismissed. 63 There is no reason why costs should not follow the event. The applicant is to have the costs of both sets of proceedings in an amount assessed under the Legal Profession Act in default of agreement. Such costs are payable by the fifth respondent.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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Judgment (35 paragraphs)

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Cases Cited (6)