Hellyer Gold Mines Pty Ltd v Johnston and Bengal Bay Capital Pte Ltd [2024] QSC 112

• [1] The plaintiff seeks orders pursuant to s 129C of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) that it have leave to effect service of the statement of claim upon the first defendant, Rodger Stuart Johnston, in Indonesia and on the second defendant, Bengal Bay Capital Pte Ltd (Bengal Bay) in Singapore.

• [2] The plaintiff seeks to have its application dealt with without oral hearing.
• [3] Rule 489 of the UCPR provides:

"489 Proposal for decision without oral hearing

(1) A party making an application, including an application in a proceeding, may propose in the application that it be decided without an oral hearing.

(2) If the applicant proposes the application be decided without an oral hearing, the court must decide the application without an oral hearing unless -

(a) under rule 491, the court considers it inappropriate to do so; or

(b) under rule 494, the respondent requires an oral hearing; or

(c) under rule 495, the applicant abandons the request for a decision without an oral hearing; or

(d) the Chief Justice or Chief Judge suspends the operation of this rule by direction."

• [4] Rule 489(2) provides that where an application is made for a decision without an oral hearing, the Court must decide the application without oral hearing unless one of the circumstances prescribed by r 489(2)(a) or (b) or (c) or (d) is present. They are not, and so I will decide the application without oral hearing.

• [5] The plaintiff, Hellyer Gold Mines Pty Ltd (Hellyer), is a company which trades in Australia. Its registered office is in Australia.
• [6] Mr Johnston presently resides in Indonesia. Bengal Bay is a company whose registered office is in Singapore.
• [7] Mr Johnston is a director of Bengal Bay and its sole shareholder. At relevant times he was also a director of Hellyer. In early 2023 Hellyer and Bengal Bay executed a written agreement entitled "Contractor Agreement'. The Contractor Agreement was to be effective from 1 January 2023. On 20 February 2023, Mr Johnston executed a deed poll also which was to be effective from 1 January 2023 (the Deed Poll).
• [8] By the Contractor Agreement, Bengal Bay agreed to provide services to Hellyer through its "nominated personnel". The nominated personnel was Mr Johnston. Bengal Bay was to be remunerated for the provision of those services. By the Deed Poll, Mr Johnston covenanted to protect confidential information and intellectual property rights of Hellyer.
• [9] Hellyer has filed a claim and statement of claim.
• [10] The claim seeks various relief including damages of $620,613.03, restitution in the sum of $31,307.32, declarations that Mr Johnston breached ss 181 and 182 of the Corporations Act 2001 (Cth), and equitable relief.
• [11] The statement of claim alleges that Mr Johnston, purportedly on behalf of Hellyer, authorised payments to Bengal under the Contractor Agreement in the sum of $400,463.03 beyond that to which Bengal was entitled. It is also alleged that there was an implied term that Bengal Bay would supply the services with due care, skill and diligence and that the services were provided in breach of that implied term. It is further alleged that Mr Johnston was issued a credit card on an account for which Hellyer was responsible. There were limits, it is alleged, as to his use of that credit card and he breached those limits by spending money on unauthorised expenditure. The sum of $31,307.32 is claimed under that head. Breaches of and of the are alleged. It is unnecessary to otherwise analyse the statement of claim.

• [12] Hellyer asserts that it may serve the claim upon Mr Johnston in Indonesia and Bengal Bay in Singapore as of right and that it does not need leave to do so. In this respect, it relies on r 125 of the UCPR.

• [13] Rule 125 is relevantly in these terms:

An originating process may be served outside Australia without leave in the following circumstances -

(a) ...

(b) if the claim is for the enforcement, rescission, dissolution, annulment, cancellation, rectification, interpretation or other treatment of, or for damages or other relief in respect of a breach of, a contract that -

(i) was made or entered into in Australia; or

(ii) was made by or through an agent trading or residing within Australia; or

(iii) was to be wholly or in part performed in Australia; or

(iv) was by its terms or by implication to be governed by Australian law or to be enforceable or cognisable in an Australian court;

(c) if the claim is in respect of a breach in Australia of a contract, wherever made, whether or not the breach was preceded or accompanied by a breach outside Australia that rendered impossible the performance of that part of the contract that ought to have been performed in Australia;

(j) if the claim arises under an Australian enactment and 1 or more of the following applies -

(i) an act or omission to which the claim relates was done or happened in Australia;

(ii) any loss or damage to which the claim relates was sustained in Australia;

(iii) the enactment applies expressly or by implication to an act or omission that was done or happened outside Australia in the circumstances alleged;

(iv) the enactment expressly or by implication confers jurisdiction on the court over persons outside Australia (in which case any requirements of the enactment relating to service must be complied with);

(k) if the person to be served has submitted to the jurisdiction of the court;

(l) if a claim is made for restitution or for the remedy of constructive trust and the alleged liability of the person to be served arises out of an act or omission that was done or happened wholly or partly in Australia;

(m) if it is sought to recognise or enforce a judgment;

(n) if the claim is founded on a cause of action arising in Australia;

• [14] There is no evidence as to whether either the Contractor Agreement or the Deed Poll was executed in Australia. However, in an affidavit sworn by Mr Carl Hagon, solicitor, in support of the application, it is said that the services provided pursuant to the Contractor Agreement were provided to Hellyer in Australia.
• [15] I have not been asked to determine whether the claim falls within r 125, but on its face rr 125(c), (j) and (n) probably apply in relation to Bengal Bay and rr 125(j), (l) and (n) probably apply as regards Mr Johnston.
• [16] Clause 13.8 of the Contractor Agreement provides as follows:

"13.8 This Agreement is governed by, and construed in accordance with the laws of Tasmania. The parties submit to the non-exclusive jurisdiction of the courts of Tasmania."

• [17] Clause 3.4 of the Deed Poll provides as follows:

"3.4 This Deed Poll is governed by the laws of Tasmania and the parties agree to submit any disputes arising under this deed to the non-exclusive jurisdiction of the courts of Tasmania."

• [18] While this Court obviously has jurisdiction to hear the claim, parties are generally bound by contractual clauses nominating a particular jurisdiction in which disputes concerning the contract are litigated.[1] Time will tell whether the defendants submit to the jurisdiction of this Court or whether they seek to invoke the provisions of the Contractor Agreement and Deed Poll which nominate Tasmania as the relevant forum.
• [19] Rule 125 authorises service without leave of "an originating process" if the circumstances prescribed in any of the subrules of r 125 exist. Therefore, so Hellyer submits, leave is not required to authorise service of the claim upon the defendants who reside in overseas jurisdictions.[2] Hellyer further says that r 125 does not authorise service of the statement of claim in a foreign jurisdiction because the statement of claim is not "an originating process". Rule 126 of the UCPR provides as follows:

(1) The court may, by leave, allow service outside Australia of an originating process if service is not allowed under rule 125.

(2) An application for leave under this rule must be made on notice to every party other than the person intended to be served.

(3) Also, an application for leave under this rule must be supported by an affidavit stating any facts or matters related to the desirability of the court assuming jurisdiction, including -

(a) the place or country in which the person to be served is or possibly may be found; and

(b) whether or not the person to be served is an Australian citizen.

(4) The court may grant leave under this rule if satisfied -

(a) the claim has a real and substantial connection with Australia; and

(b) Australia is an appropriate forum for the trial; and

(c) in all the circumstances the court should assume jurisdiction.

(5) A sealed copy of an order made under this rule must be served with the document to which it relates."

• [20] Rule 126 also concerns service of "an originating process". It provides for service by leave of the Court, where service as of right is not allowed under r 125.
• [21] Rules 125 and 126 together regulate the service in a foreign jurisdiction of all originating process.
• [22] Rule 129C deals with service of documents "other than an originating process". It provides:

"129C Service of other documents outside Australia

(1) A document other than an originating process may be served outside Australia with the leave of the court.

(2) On an application for leave under subrule (1), the court may give the directions it considers appropriate."

• [23] Hellyer submits that as the statement of claim is not an originating process, it is "[a] document other than an originating process" [3] and therefore leave is required to serve it outside Australia.[4] By this application it seeks leave.

• [24] Before the UCPR was introduced, civil procedure in this Court was regulated by the Rules of the Supreme Court (RSC).
• [25] Order 2 r 1 of the RSC provided for proceedings to be commenced by writ of summons (writ), motion, petition, originating summons or order to show cause. Had the present proceedings been commenced under the RSC, they would have been commenced by writ. Each writ would bear an endorsement which identified the claim for relief but would not, unless the writ was one which could be specially endorsed,[5] contain any particulars of the claim such as would resemble a pleading.
• [26] Service of a writ could be made in any State or Territory pursuant to the provisions of the Service and Execution of Process Act 1992 (Cth). Service of a writ overseas was not permitted at all. A process existed for the service of a notice of writ or other originating proceeding,[6]
• [27] By O 12 r 1 of the RSC, a defendant was required to enter an appearance to the writ. By O 12 r 22, a defendant who disputed the jurisdiction of the Court to hear the proceeding could enter a conditional appearance and then argue any jurisdictional issues. A statement of claim was not required to be delivered until after any jurisdictional issues were determined. [7]
• [28] An aim of the UCPR was to simplify procedure in all Queensland Courts. The only originating process[8] is a claim or an application.[9] Rule 9 provides that a proceeding must be commenced by claim unless the rules authorise the proceeding to be started by application.
• [29] Rule 22 concerns claims and it provides:

(a) state briefly in the claim the nature of the claim made or relief sought in the proceeding; and

(c) for a claim filed in he District Court or a Magistrates Court, show the court has jurisdiction to decide the claim.

(3) The claim and attachment must be filed and then served on each defendant.

• [30] Any defendant served with a claim must file a notice of intention to defend.[10] The notice of intention to defend must have the defence attached to it.[11]
• [31] A defendant who is served with a claim outside the jurisdiction may challenge the Court's jurisdiction by filing a conditional notice of intention to defend[12], and then make an application to set aside the claim.[13]
• [32] Whether the statement of claim is a document which is of a type which cannot be served except by leave is determined upon a proper construction of the UCPR. The exercise of construction focuses on the meaning of the actual text of the words in the relevant rules. In that process, the context of the text is considered, as is its purpose[14] and the UCPR as a whole.[15]
• [33] Under the RSC, the statement of claim was not contemplated to be served with the writ. Once the notice of writ was served, the defendant was put to an election whether to appear to the writ or appear conditionally and challenge the jurisdiction of the Court to hear the proceeding. Those procedures completely changed with the introduction of the UCPR. The statement of claim is filed with the claim and served with it. It is at that point that a defendant must either appear or challenge the jurisdiction of the Court.
• [34] By r 22 of the UCPR, the claim must be accompanied by a statement of claim which must be "attached".[16] The "claim and attachment must be filed".[17] The "claim and attachment" must then be "served on each defendant".[18] Rule 125 concerns the service outside of Australia of "an originating process". An originating process is a document which is either a claim or an application. The document which constitutes a "claim" is the document which complies with the requirements of r 22. It must "state briefly ... the nature of the claim made or relief sought" and "attach a statement of claim".[19]
• [35] Therefore, the "originating process" referred to in r 125 is the "claim" which consists in part of the statement of claim "attached". It follows that if the claim "with the statement of claim attached" concerns a matter prescribed in one of the subrules of r 125, then the claim "with the statement of claim attached" may be served without leave. The relief sought by Hellyer is therefore unnecessary and the application ought to be dismissed.

"[58] The applicant raised the point that that, while there is provision for an originating process to be served without seeking leave, there was no specific rule stating that an affidavit in support of the originating application may be served without leave. Indeed, to the contrary, r 129C of the UCPR provides that "a document other than an originating process may be served outside Australia with leave of the court". Rules 208C and 208D both require that the application for preliminary discovery must be supported by an affidavit and, further, that the application is to be made by way of an originating application in circumstances where there is no proceeding on foot. There is strength in the applicant's submission that there appears to be a lacuna in the rules insofar as it is anomalous that the originating application was required to be served without leave but leave is required in order to serve the accompanying affidavit which must be served with the application. That same distinction is made in other jurisdictions. Although Blue Dog submits that the Court should construe the originating application as if the affidavit was part of it, there is no support for that in the language used. It otherwise seeks such leave. In the circumstances, it is appropriate for me to grant leave nunc pro tunc for the affidavit of Michael Timothy Shepherd affirmed 17 November 2023 to be served outside Australia upon the respondents in the United States."

• [37] Rule 26 of the UCPR prescribes the content of an application which is an originating process:[21]

(2) An application must name as respondents all persons directly affected by the relief sought in the application.

Note - The court may direct that others be included as respondents - see rule 69 (Including, substituting or removing party).

(3) Subrule (2) does not apply if these rules or another law authorise the hearing of the application without notice being given to another person.

(4) The application must list the affidavits to be relied on by the applicant at the hearing.

(5) The applicant must specify in the application the orders or other relief sought in the proceeding.

(6) If an application is made under an Act, the application must state the name and section number of the Act under which the application is made.

(7) The application, and any copies of the application for service, must specify the day set for hearing the application.

(8) An application filed in the District Court or a Magistrates Court, or material filed with it, must show that the court has jurisdiction to decide the application."

• [38] Rule 27 concerns service of such an application:

(1) An application must be filed and then served on each respondent at least 3 business days before the day set for hearing the application.

Note - Under the Acts Interpretation Act 1954, section 38(1)(a), the service day and the hearing day are excluded in the reckoning of time.

(2) However, the time limit in subrule (1) does not apply if -

(a) these rules, an Act or another law permit the application to be heard and decided without being served; or

(b) the applicant proposes in the application that it be decided without a hearing; or

(c) another time is provided for under these rules or an Act.

(3) If an application is not served as required by subrule (1), the court must not hear and decide the application unless the court considers it just to hear and decide the application on the day set for hearing and 1 of the following applies -

(a) the court is satisfied delay caused by giving notice of the application would cause irreparable or serious mischief to the applicant or another person;

(b) the court is satisfied the respondents to the application will suffer no significant prejudice if it hears and decides the application on the day set for hearing;

(c) the respondents to the application consent to the court hearing and deciding the application on the day set for hearing.

The court may decide subrule (3) has been satisfied if the application is a cross application by a respondent to another application and it is convenient for the applications to be heard together.

(4) For an application not served as required by subrule (1) -

(a) the court may make an order on an undertaking given by the applicant and acceptable to the court; and

(b) a person affected by the order may apply to the court for it to be set aside."

• [39] Rule 28 concerns service of affidavits in support of the application:

"28 Service of affidavit in support of application

(1) An affidavit to be relied on by the applicant at the hearing of an application must be filed and then served on each respondent at least 3 business days before the day set for hearing the application.

(2) However, the court may give leave for an affidavit not served as required by subrule (1) to be relied on at the hearing."

• [40] The combined effect of rr 26, 27 and 28 is that the application is a different document to any affidavits to be relied on upon the application. This can be seen clearly from r 26(4). The application (one document) must list the affidavits (other documents) to be relied upon. The affidavits are not "attached" to the application like a statement of claim is attached to a claim.[22]Rules 27 and 28 deal separately with the service of the application (one document) and the service of affidavits in support (other documents).
• [41] The application is clearly an "originating process" for the purposes of r 125. Whether, if the application may be served without leave under r 125, leave may still be required for the service of affidavits in support under r 129C need not be finally determined. Indeed, her Honour did not determine that issue in Blue Dog Group Pty Ltd v Glaucus Research Group California LLC[23]. Her Honour took a pragmatic view and gave leave nunc pro tunc. For the reasons already explained, r 22 deals with the accompanying statement of claim in a very different way than rr 26, 27 and 28 deal with affidavits in support of an application which is an originating process.
• [42] There is nothing in Blue Dog Group Pty Ltd which causes me to doubt the construction I have given to rr 22 and 125.

• [43] Provided that at least one of the circumstances prescribed by r 125 exists, the claim with the statement of claim attached may be served on the first and second defendants in Indonesia and Singapore respectively without leave of the Court. The application should therefore be dismissed.
• [44] Hellyer in its application and written submissions seek an order that costs be reserved. The defendants were not served with the application (understandably) and therefore they have incurred no costs. Hellyer has unnecessarily incurred the costs of the application and I cannot foresee circumstances in which either Mr Johnston nor Bengal Bay could be ordered to pay them. The appropriate order then is to make no order as to costs.
• [45] The orders are:
  1. The application filed by the plaintiff on 14 May 2024 be determined without an oral hearing.
  2. The application is otherwise dismissed.
  3. There be no order as to costs.

[1] Akai Pty Ltd v The People's Insurance Co Ltd (1996) 188 CLR 418 at 445; Australian Health Nutrition Association Ltd v Hive Marketing Group Pty Ltd [2019] NSWCA 61; (2019) 99 NSWLR 419 at [78]; and see generally RCD Holding Ltd v LT Game International (Australia) Ltd (2020) 6 QR 194 at [57]-[71].

[2] Mr Johnston resides overseas and Bengal Bay's registered office is overseas.

[3] Uniform Civil Procedure Rules 1999 r 129C (1).

[4] Uniform Civil Procedure Rules 1999 r 129C.

[6] Rules of the Supreme Court O 11 r 2.

[7] Rules of the Supreme Court O 12, O 22.

[9] Uniform Civil Procedure Rules 1999 r 8.

[10] Uniform Civil Procedure Rules 1999 rr 135, 137.

[11] Uniform Civil Procedure Rules 1999 r 139.

[12] Uniform Civil Procedure Rules 1999 r 144.

[13] Uniform Civil Procedure Rules 1999 r 16.

[14] R v A2; R v Magennis; R v Vaziri [2019] HCA 35; (2019) 269 CLR 507 at [31]- [37].

[15] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 CLR 355 at [69].

[16] Uniform Civil Procedure Rules 1999 r 22(2)(b).

[17] Uniform Civil Procedure Rules 1999 r 22(3).

[18] Uniform Civil Procedure Rules 1999 r 22(3).

[19] Uniform Civil Procedure Rules 1999 r 22 (a)-(b).

[20] [2024] QSC 37.

[21] In distinction to an interlocutory application.

[22] Uniform Civil Procedure Rules 1999 r 22.

[23] [2024] QSC 37