HIS HONOUR: "Nitro Circus Moto Mayhem" is, I understand, a live action sports show, the rights in which are owned by the plaintiff, Nitro Circus Touring Australia Pty Ltd (ACN 138 969 776).
By written agreement dated 8 December 2014, the plaintiff granted to the defendant, Ilaria Lenzoni the right to promote and present the show. The defendant agreed to present it on 21 June 2015, at Turin Palaolympico, in Turin, Italy, for which privilege the defendant agreed to pay the plaintiff USD $300,000. In breach of this agreement, she paid only USD $55,000.
Clause 27 of the agreement provided that it is governed by and to be construed in accordance with the laws of New South Wales and the parties submit to the non-exclusive jurisdiction of this State.
Consequently, by Summons and Commercial List Statement issued on 4 September 2015, the plaintiff sued the defendant for USD $245,000 (or alternatively damages) as well as interest and costs.
The defendant resides in Italy. As will appear below, the evidence establishes that she received the initiating process on 26 October 2015 by registered post in that country.
By Notice of Motion filed 9 February 2016, the plaintiff moves for default judgment against the defendant in the sum of USD $254,718.52 (which includes interest) and costs of AUD $5,223.00.
The defendant has not filed any appearance. The issue is whether she was validly served with the process so as to entitle the plaintiff to the orders which it seeks.
Part 11A of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") concerns service under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965 ("the Hague Convention"), to which Australia acceded on 15 March 2010 and which entered into force in this country on 1 November 2010.
The Hague Convention recites that the signatory States' desire to create a means to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time. By it, each Contracting State agrees to designate a Central Authority which will undertake to receive requests for service coming from other Contracting States, to organise the Central Authority in conformity with its own law and to proceed in conformity with Arts 3-6. Those Articles are in the following terms:
Article 3
The authority or judicial officer competent under the law of the State in which the documents originate shall forward to the Central Authority of the State addressed a request conforming to the model annexed to the present Convention, without any requirement of legalisation or other equivalent formality. The document to be served or a copy thereof shall be annexed to the request. The request and the document shall both be furnished in duplicate.
Article 4
If the Central Authority considers that the request does not comply with the provisions of the present Convention it shall promptly inform the applicant and specify its objections to the request.
Article 5
The Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency, either -
a) by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, or
b) by a particular method requested by the applicant, unless such a method is incompatible with the law of the State addressed.
Subject to sub-paragraph (b) of the first paragraph of this Article, the document may always be served by delivery to an addressee who accepts it voluntarily.
If the document is to be served under the first paragraph above, the Central Authority may require the document to be written in, or translated into, the official language or one of the official languages of the State addressed.
That part of the request, in the form attached to the present Convention, which contains a summary of the document to be served, shall be served with the document.
Article 6
The Central Authority of the State addressed or any authority which it may have designated for that purpose, shall complete a certificate in the form of the model annexed to the present Convention.
The certificate shall state that the document has been served and shall include the method, the place and the date of service and the person to whom the document was delivered. If the document has not been served, the certificate shall set out the reasons which have prevented service.
The applicant may require that a certificate not completed by a Central Authority or by a judicial authority shall be countersigned by one of these authorities.
The certificate shall be forwarded directly to the applicant.
Division 2 of Pt 11A of the UCPR is entitled Service Abroad of Local Judicial Documents and by r 11A.3(1), relevantly applies to service in a Convention country of a local judicial document.
Italy is a Convention country.
Rule 11A.4(1) of the UCPR (read with r 11A.1) provides that a person may apply to the Principal Registrar of the Court, in the Registrar's capacity as a forwarding authority, for a request for service in a Convention country of a local judicial document. Rule 11A.4(2) provides that the application must be accompanied by various documents including a draft request for service abroad, which must be in the approved form. Rule 11A.5(1) provides that if satisfied that the application and its accompanying documents comply with r 11A.4, the Registrar must sign the request for service abroad and forward two copies of the relevant documents to the Central Authority for the Convention country in which service of the document is to be effected.
Rules 11A.6(1), (2) and (3) of the UCPR provide:
11A.6 Procedure on receipt of certificate of service
(1) Subject to subrule (5), on receipt of a certificate of service in due form in relation to a local judicial document to which a request for service abroad relates, the Registrar:
(a) must arrange for the original certificate to be filed in the proceedings to which the document relates, and
(b) must send a copy of the certificate to:
(i) the legal practitioner on the record for the applicant in those proceedings, or
(ii) if there is no legal practitioner on the record for the applicant in those proceedings - the applicant.
(2) For the purposes of subrule (1), a certificate of service is in due form if:
(a) it is in the approved form, and
(b) it has been completed by a certifying authority for the Convention country in which service was requested, and
(c) if the applicant requires a certificate of service that is completed by an additional authority to be countersigned by the Central Authority, it has been so countersigned.
(3) On receipt of a statement of costs in due form in relation to the service of a local judicial document mentioned in subrule (1), the Registrar must send to the legal practitioner or applicant who gave the undertaking mentioned in rule 11A.4 (3) a notice specifying the amount of those costs.
Rule 11A.8 of the UCPR provides, relevantly, that a certificate of service is, in the absence of evidence to the contrary, sufficient proof that service of the document was effected by the method specified in the certificate on that date.
Rule 11A.10 UCPR provides:
11A.10 Restriction on power to enter default judgment if certificate of service filed
(1) This rule applies if:
(a) a certificate of service of initiating process has been filed in the proceedings (being a certificate in due form within the meaning of rule 11A.6 (2)) that states that service has been duly effected, and
(b) the defendant has not appeared or filed a notice of address for service.
(2) In circumstances to which this rule applies, default judgment may not be given against the defendant unless the Court is satisfied that:
(a) the initiating process was served on the defendant:
(i) by a method of service prescribed by the internal law of the Convention country for the service of documents in domestic proceedings on persons who are within its territory, or
(ii) if the applicant requested a particular method of service (being a method under which the document was actually delivered to the defendant or to his or her residence) and that method is compatible with the law in force in that country, by that method, or
(iii) if the applicant did not request a particular method of service, in circumstances where the defendant accepted the document voluntarily, and
(b) the initiating process was served in sufficient time to enable the defendant to enter an appearance in the proceedings.
(3) In subrule (2) (b), sufficient time means:
(a) 42 days from the date specified in the certificate of service in relation to the initiating process as the date on which service of the process was effected, or
(b) such lesser time as the Court considers, in the circumstances, to be a sufficient time to enable the defendant to enter an appearance in the proceedings.
Section 17 of the Civil Procedure Act 2005 (NSW) ("CPA") provides:
17 Forms
(1) Subject to the uniform rules, the Uniform Rules Committee:
(a) may approve forms for documents to be used in connection with civil proceedings, and
(b) in the case of documents filed with a court, or issued by a court, by means of an ECM system within the meaning of the Electronic Transactions Act 2000, may approve the format in which such documents are to be filed or issued.
(2) Copies of the approved forms are to be made available for public inspection at each registry of the court concerned and on the court's internet website.
(3) If a form is approved in relation to a document to be used in connection with proceedings in a court, a document that is filed with or issued by the court is to be in that form.
Note. See section 80 of the Interpretation Act 1987 with respect to compliance with approved forms.
On 9 September 2015, the plaintiff applied to the Principal Registrar of the Court under r 11A.4 of the UCPR for a request for service in Italy of the Summons and Commercial List Statement (which had been filed on 4 September 2015). On 10 September 2015, the Registry notified the plaintiff that a request for service together with the appropriate documents had been forwarded to the Authority Office in Rome, Italy for service.
There is in evidence a print out of an internet website which, on its face, identifies that Office as being the Central Authority for service under what it refers to as the Service Convention. I am satisfied that this is a reference to the Central Authority contemplated in Art 5 of the Hague Convention. I would in any event be prepared to infer that this is the Central Authority from the fact that it is the Office to which the Principal Registrar, acting pursuant to the rules intended to give effect to the Hague Convention, sent the documents. It is also the Office which responded to the request consistently (as will appear below) with the expectations of the Hague Convention.
The plaintiff's application was in the form approved by the Uniform Rules Committee and available for public inspection at the registry of the Court and on the Court's internet website (contemplated by s 17 of the CPA). The form is in two parts. Part 1 is entitled 'Request for Service Abroad' and contains provision for the documents to be listed. Part 2 is a Certificate by which the Central Authority of the State addressed certifies that service has been effected. It is in the following form:
PART 2 - CERTIFICATE
Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, done at The Hague on 15 November 1965
The undersigned authority has the honour to certify, in conformity with Article 6 of the Convention:
1 that the documents listed in Part 1 have been served*
-the (date)
-at (place, street, number)
-in one of the following methods authorised by Article 5:
(a) in accordance with the provisions of subparagraph (a) of the first paragraph of Article 5 of the Convention*,
(b) in accordance with the following particular method*:
(c) by delivery to the addressee, who accepted it voluntarily*.
The document referred to in the request, has been delivered to:
-(identity and description of person)
-relationship to the addressee (family, business or other.)
2 that the document has not been served, by reason of the following facts*:
In conformity with the second paragraph of Article 12 of the Convention, the forwarding authority is requested to pay or reimburse the expenses detailed in the attached statement*.
Annexes
Documents returned:
In appropriate cases, documents, establishing the service:
Done at , the
Signature or stamp, (or both).
*Delete if inappropriate.
The Summons was first returned in the Court on 6 November 2015 before me. Mr J Dooley of Counsel appeared for the plaintiff. A solicitor, Mr Lim, purported to appear on the defendant's behalf on the first return.
Part 6 Div 3 r 6.9(1) of the UCPR provides "A defendant may enter an appearance in proceedings by filing a notice of appearance".
The evidence establishes that there was a conversation between Mr Dooley and Mr Lim during which Mr Lim told Mr Dooley that he had been instructed only the night before to appear for the defendant on the return of the Summons and had been instructed to seek to have the matter stood over to 4 December 2015, to allow time to receive proper instructions from the defendant.
The plaintiff was content for the matter to be adjourned and I stood it over to 4 December 2015. On 4 December 2015, there was no appearance (purported or otherwise) for the defendant. I stood the matter over to 12 February 2016 and granted the plaintiff leave to make an application for default judgment returnable on that day.
The evidence establishes that on 16 November 2015, the plaintiff's solicitors wrote to the lawyers who had previously represented the defendant, enquiring whether they had filed a Notice of Appearance and asking whether they continued to act for her. No reply was received.
No notice of appearance was, or ever has been, filed by the defendant. She never filed a notice of address for service. Accordingly, she has not appeared as contemplated by the UCPR.
On 27 November 2015, the Principal Registrar wrote to the plaintiff's solicitors, forwarding a copy of a letter from the Court of Lucca, and other associated documents for their information. The enclosed documents included documents in the Italian language, certified translations of which have been provided. One of the documents is an "Acknowledgement of Receipt" ("the Acknowledgement"). Its contents include the following:
Seal of the distribution office Acknowledgement of receipt to be returned to: (write in capital letters)
COURT OF LUCCA - U.N.E.P
THE JUDICIAL OFFICER E1
Bertone Angelina
No 836 Acknowledgment of receipt of the item sent by registered mail n* (see verso) from the Postal Office of …….23 October
addressed to Lenzoni Ilaria c/o off Road Pro Racing Via Emilia 488 Querceta Seravezza
Home Delivery of the Item
I declare that I received the abovementioned registered item on 26/10/15
[X] Recipient: individual (even if declared bankrupt)
…
(Illegible signature)
(Signature of the addressee or authorized person)
14. Page 7 of Annexure G states, in part:
Court of Lucca Notifications Office
Requesting office: Registrar New South Wales Supreme Court
Request date: 30/9/2015 Ref. 3.15 Hearing A/ES/836
I the undersigned Officer of the Court B/3 attached to the above Court have served the attached document on:
Ilaria Lenzoni c/o OFF ROAD PRO RACING (1/1)
of V. Emilia Querceta, 488/2 Seravezza 55047 (LJ)
delivering a copy as follows:
…
[x] by mail under law 890 of 20/11/82, despatched from the Post Office in Lucca C.P.O.
Date, 23 October 2015
76467199086_2
Signed: The Officer of the Court
Stamp: Court of Lucca Notifications Office, the Court Officer, Angelina Bertone…
The Acknowledgement is clearly intended to constitute a certificate of service but, as can be observed, it is not in the approved form.
However, s 80 of the Interpretation Act 1987 (NSW) provides:
80 Compliance with forms
(1) If a form is prescribed by, or approved under, an Act or statutory rule, strict compliance with the form is not necessary but substantial compliance is sufficient.
(2) If a form prescribed by, or approved under, an Act or instrument requires the form to be completed in a specified manner, or 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.
(3) Without limiting the generality of subsections (1) and (2), in any form in, or approved under, an Act or statutory rule, a reference to a date that is presumed to be in the nineteenth or twentieth century may be construed as a reference to a date in the twenty-first century and the form may be altered accordingly.
(4) If an Act or statutory rule requires anything to be in a form prescribed by rules of court (whether generally or in relation to a particular court or tribunal), any such rules of court may instead provide for the thing to be in a form approved under or in accordance with those rules.
Thus, the Acknowledgement will suffice as a certificate of service for the purposes of r 11A.10 of the UCPR if it constitutes "substantial compliance" with the approved form.
Substantial compliance is a matter of degree and concerns the practical effect of what has been done, compared with the practical effect the relevant provision which has not been complied with seeks to achieve; Re Asset Risk Management Ltd (1995) 59 FCR 254; Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331 at 338; Deputy Commissioner of Taxation (Cth) v Comcorp Australia Ltd (1996) 21 ACSR 590 at 627-628.
The approved form is the certificate of service contemplated by Art 6 of the Hague Convention. That Article requires the certificate to state that the document has been served, where it was served, when it was served and the person to whom the document was delivered. The Acknowledgement meets each of the substantive requirements which the approved form imposes: it is a certificate from the Central Authority; it identifies the recipient; it states the date of service; it identifies the place of service; and it describes the method of service.
The Acknowledgement diverges from the approved form in that it does not identify the served documents by listing them. On one view however, it does better, identifying them by attaching them. The evidence establishes that the documents attached included the Summons, Commercial List Statement and a summary of the documents to be served.
Thus, although the form of the Acknowledgement diverges from the approved form, the practical effect of what was done is no different to the practical effect of what r 11A.6 of the UCPR, seen in the context of Art 6 of the Hague Convention, seeks to achieve. The Acknowledgement is substantial compliance with the approved form.
Rule 11A.10(2) of the UCPR requires the Court to be satisfied that the initiating process was served on the defendant either by 1) a method of service prescribed by the internal law of the Convention country for the service of documents in domestic proceedings on persons who are within its territory, or 2) in accordance with a particular method, compatible with the law in force in that country, as requested by the applicant (the plaintiff). No particular method of service was requested by the plaintiff. There is sufficient material to be satisfied that the defendant was served by a method prescribed by the internal law of Italy.
I am prepared to infer that the internal law of Italy is consistent with the Hague Convention recognising that service may be effected where it is accepted voluntarily. Additionally, the internet website of the Central Authority referred to above identifies that service can be executed "by postal service according to law n.890/1982". Finally, the Acknowledgement states that the process was delivered "by mail under law 890 of 20/11/82" which I am prepared to infer is a statement that mail delivery is valid service.
In any event, Art 5 of the Hague Convention provides that the document may always be served by delivery to an addressee who accepts it voluntarily. That is what occurred here. The fact that the recipient acknowledged receipt satisfies me that it was accepted voluntarily as contemplated by Art 5 of the Hague Convention. Although no notice of appearance was filed by the defendant, she plainly had notice of the proceedings because a legal practitioner purported to appear on her behalf on the first return. There was no suggestion that she had not been served.
It follows that I am satisfied that the initiating process was validly served on the defendant on 26 October 2015.
The plaintiff's entitlement to be paid the sum owing under the agreement, and legal costs of AUD $5,223.00, is established by the Affidavit of its Senior Business Affairs Manager, Stephen Rogers, sworn 8 February 2016 and which has been read on the application.
It having been established that service occurred on 26 October 2015, the 42 day period specified in r 11A.10(3)(a) of the UCPR had elapsed by 7 December 2015.
In the circumstances, the plaintiff is entitled to default judgment as prayed. I accordingly make the following orders:
1. Judgment for the Plaintiff in the amount of USD $254,718.52.
2. The defendant is to pay the plaintiff's costs of the proceedings, which costs I assess at AUD $5,223.00.
[3]
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.
Decision last updated: 04 March 2016