HATHAWAY SHIRT CO PTY LTD v B RAWE GmbH COMPANY

On 7 August 1985 the respondent commenced proceedings to recover the alleged debt in a German Court. In this connection it should be noted that the terms and conditions of the sale of goods in question provided that a German Court should have jurisdiction to resolve disputes arising out of the transaction.

Both prior to and following the commencement of the proceedings there was an exchange of correspondence between the parties concerning the alleged debt and on 21 May 1986, the respondent sent a telex to the appellant which contained the following statement. "In order to settle the case we are proposing without prejudice...", and there then followed a certain financial arrangement, which was apparently unacceptable to the appellant.

It is common ground that on 6 June 1986 a copy of the Statement of Claim, which had been file in August 1985 in the German Court, was delivered by a process server in Sydney to one of the Directors of the appellant company, Mr Fabian. The precise identity of the process server is not clear but he may have been a sheriff's officer associated with this Court. However that may be, Mr Fabian does not dispute that he was handed on that occasion a document which, so it is now agreed, was a copy of the relevant Statement of Claim.

The evidence does not disclose what Mr Fabian actually did with that document. It is not in dispute that he was an appropriate person to receive service of documents on behalf of the appellant company. Whether the document was lost or destroyed is an issue that is not addressed in the evidence, although it is known that the document was not available to be produced to the Court at the time of the proceedings before Master Greenwood.

In an affidavit sworn in these proceedings Mr Fabian said that the document which he was handed was entirely in German and he also said that it appeared to be the same as another document which he was handed some time later, which was in fact in evidence, that document was a default judgment. To proceed with the history of the relevant litigation, on 17 September 1986 the respondent company took out a default judgment in the German Court and that judgment was made provisionally enforceable. On 16 February 1987 a copy of the default

judgment, together with an English translation, was served upon the appellant company, although, so far as appears from the evidence, nothing was done about the matter by the appellant company at that stage. On 14 April 1987 the respondent made an application to the German Court for the judgment to be enforceable and the judgment became enforceable on 15 April 1987. On 21 May 1987 a summons claiming registration of the foreign judgment was filed in this Court. The judgment was duly registered.

Thereupon an application was made to set aside the judgment pursuant to the provisions of s8(1)(a)(iii) of the Foreign Judgments Act 1973. That section provides: "8(1) On an application in that behalf duly made by any party against whom a registered judgment may be enforced, the registration of the judgment - (a) shall be set aside if the Supreme Court is satisfied - (iii) that the judgment debtor did not (notwithstanding that process may have been duly served on him in accordance with the law of the country of the original Court) receive notice of those proceedings in sufficient time to enable him to defend the proceedings and did not appear."

The basis upon which the application was made was that in all the circumstances the judgment debtor, the appellant, did not receive notice of the German proceedings in sufficient time to enable it to defend the proceedings.

The respondent argued, unsuccessfully, in the Courts below that on any view of the matter the appellant received due and adequate notice of the default judgment before it became finally enforceable and that in those circumstances it was not open to the appellant to rely upon the provisions of s8(1)(a)(iii). That submission was contrary to the decision of the Full Court of the Supreme Court of Queensland in Barclays Bank Ltd v Piacun [1984] 2 QR 476, in which it was held that the expression "notice of proceedings" in this context in effect means "notice of the commencement of proceedings".

Because I am of the view that the respondent is entitled to succeed in this appeal on another ground, this is not an appropriate occasion for this Court to consider whether it would follow the decision of the Full Court of the Supreme Court of Queensland in relation to that subject and I say nothing more about it.

To return to the evidence in relation to the service of the Statement of Claim, Roden J remarked - and I agree - that the evidence was bare in a number of important respects. In that connection then it becomes important to consider which party carried the onus of proof. I would respectfully agree with the views expressed by Fox J in the Supreme Court of the Australian Capital Territory in Brockley Cabinet Co v Pears [1972] 20 FLR 333 at 336 that in an application such as was before Master Greenwood the applicant/defendant carried the onus of satisfying the court of the matters referred to in the relevant paragraph and in particular of the fact that the applicant did not receive sufficient notice.

The background to the delivery to Mr Fabian by a process server of the document in question was as follows. The respondent company had entered into a business transaction with a German supplier of goods. The transaction had given rise to a dispute concerning an alleged debt owed by the appellant to the respondent. There had been an exchange of correspondence between the parties involving attempts by the parties to recover the debt and resistance by the appellant to those attempts. An offer to "settle the case" had been made by the respondent to the appellant and apparently rejected by the appellant.

Against that background, a document, which is no longer available, but which is agreed to have been a copy of the Statement of Claim, was handed to Mr Fabian. An examination of a document which Mr Fabian acknowledges to be so

URJ HATHAWAY SHIRT CO PTY LTD v B RAWE GmbH COMPANY (Gleeson CJ) 3

similar to the document served on him that he thought it was actually the same discloses that although it is in the German language it names the two parties to the present proceedings and it is quite evidently a document of considerable formality.

Mr Fabian said in his affidavit that he does not speak the German language and that he did not know what the document was. He also said specifically, and presumably in the light of the receipt by him of the document, that he did not know there was Court proceedings on foot.

Mr Fabian's statement that he did not know what the document was, and in particular that he did not know there were Court proceedings on foot, is a piece of information which itself raises further questions, and those questions were left unanswered by the evidence. Accepting Mr Fabian's inability to speak the German language and accepting that he was not able to make a translation of the document for himself, it by no means follows that having received the document from a process server he was literally and in every respect none the wiser. The obvious question that is raised by the terms of Mr Fabian's affidavit is this: if he did not know what the document was, what did he think it might be?

It seems fairly clear that the document which was handed to Mr Fabian was obviously formal document relating in some way to the dealings between the appellant and the respondent; dealings which, as Mr Fabian well knew, had given rise to a dispute about an alleged debt.

Subject to one minor qualification to which I shall refer in a moment, the evidence discloses no steps taken by Mr Fabian to acquaint himself with the terms or import of the document handed to him and, indeed, it is perfectly consistent with the evidence, or lack of evidence, on the matter that upon receipt of it he threw it in the waste paper basket. As I have indicated, the absence of evidence in relation to matters such as I have just mentioned is of some significance when one bears in mind that the onus was upon the appellant to establish that it did not receive sufficient notice of the commencement of Court proceedings against it.

The minor qualification to which I earlier referred was that Mr Fabian's affidavit discloses that shortly after receipt of the document he had a telephone conversation with the respondent's Sydney agent. Who initiated that conversation does not appear from the affidavit but the affidavit gives the following account: "As best I can recall, he said, Have you heard from Rawe? It appears they are getting serious'. I said, 'We have received a document in German. I don't know what it is'. He said, 'I will contact Rawe now and see what I can do because it's all just a waste of time. I'll see what I can do to resolve it".

According to Mr Fabian's recollection, that was the last conversation (or at least the last conversation about this matter) that he had with the agent in question. Plainly, the conversation falls a long way short of the offering to Mr Fabian by any authorised person of some kind of assurance or reassurance about the steps that he might need to take in response to the receipt of the document in question.

The primary submission that has been made on behalf of the appellant is that when the statutory provision in question uses the expression "receive notice" it means that the judgment debtor must be made actually aware of the fact that legal proceedings have been commenced against him. In my view, this is not an acceptable construction of the statute. It is well established that there is a difference in law between receiving notice of a fact and being made fully and subjectively aware of the fact. Indeed, the term "notice" is frequently used in

contradistinction to actual subjective awareness. There may be any number of reasons why a person who has received what would amount to notice of a fact might nevertheless remain subjectively unaware of the fact and in that sense not have knowledge of it.

Further, I am unable to accept a proposition that, simply because the document that was handed to Mr Fabian was in the German language and he was himself unable to translate it, it necessarily follows that the handing to him of the document did not constitute giving him sufficient notice of the commencement of the proceedings.

The question whether the handing of such a document in a foreign language to a judgment debtor constitutes giving sufficient notice is a question of fact to be determined in the circumstances of each particular case. Handing a document in a foreign language to a person may or may not constitute notice, depending on the circumstances. I have already outlined the relevant circumstances surrounding the delivery of the present document and I have, in addition, referred to the absence of evidence in relation to other aspects of the matter which might also have been regarded as of relevance.

In my view, it has not been shown that Roden J was in error in reaching the conclusion in the circumstances of the present case that the judgment debtor had not made good its contention that it did not receive notice of the relevant proceedings. I would propose that the appeal be dismissed with costs.

The order of the Court is that the appeal is dismissed with costs. Counsel for the Appellant: D Campbell

Solicitors for the Respondent: Dibbs Crowther and Osborne