Lu v Gong

The interlocutory application is supported by two affidavits of Ben Dodgshun made on 6 and 7 May 2026. Mr Dodgshun is a partner at Minter Ellison, who are the solicitors for the State.

For the reasons that follow, I will make an order under r 10.48 that the initiating documents are taken to have been served on Ms Xiong, and ancillary orders sought by the State.

The proceeding was commenced on 6 August 2025. It has progressed slowly as a result of difficulties in serving two of the defendants and certain of the cross-respondents.

The plaintiffs are citizens of the People’s Republic of China. The proceeding concerns investments made by the plaintiffs in Australia as a condition of the grant of a visa to reside in Australia known as the Significant Investment Visa. By way of overview, the plaintiffs allege that:

The plaintiffs allege that, by making the product representations and the no benefits representation, each of Ms Gong, Mr Stringer and the State engaged in misleading and deceptive conduct or made a false or misleading representation in contravention of ss 18 and 29 of the Australian Consumer Law (as a law of the Commonwealth, alternatively as a law of the State of Victoria), alternatively ss 12DA and 12DB of the Australian Securities and Investments Commission Act 2001 (Cth), and seek damages pursuant to those statutes.

The State has brought a cross-claim against Ms Gong, Mr Stringer, Paragon and Ms Xiong seeking contribution and/or indemnity pursuant to Pt IV of the Wrongs Act 1958 (Vic) or in equity.

There was delay in the plaintiffs and the State serving process on Mr Stringer and Ms Gong, but that has now been done.

The State’s interlocutory application concerns service on Ms Xiong who is a citizen of, and resident in, China. The State has joined Ms Xiong to the proceeding as a cross-respondent. In respect of Ms Xiong, the State alleges that, if it is found liable to the plaintiffs (which it denies), and that liability is not apportionable, Ms Xiong is also liable to the plaintiffs for the same loss or damage because she was negligent in advising the plaintiffs.

Mr Dodgshun deposed that, in March 2026, Minter Ellison sought contact details for Ms Xiong from the plaintiffs’ solicitors. The plaintiffs’ solicitors provided the following information:

An email from Ms Xiong at the Email Address sent on 28 August 2015 also contained a China mobile telephone number (Mobile Number) beneath Ms Xiong’s name at the end of the email.

On 29 April 2026, Minter Ellison sent a copy of the initiating documents to the Email Address. No response was received to that email. On the same day, Minter Ellison engaged a law firm in China, Shanghai Rewin Law Firm (Rewin), to attempt personal service of the initiating documents and a covering letter, in Mandarin and English, at the Pingliang Road Address. Rewin confirmed by return email on the same day, and later by way of a formal record of service on 6 May 2026, that:

Australia and China are both Contracting Parties to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Convention). Subsequently, and in support of its application for orders for deemed or substituted service, Minter Ellison accessed the website maintained by the Hague Conference on Private International Law at a page titled “China – Central Authority & practical information”. The page stated that the time for execution of a request under the Hague Convention by China’s nominated Central Authority, the International Legal Cooperation Center, was around six months. A note at the bottom of the website page records that it was last updated on 15 January 2026.

Service of an originating process outside of Australia requires the authority of a statute or the rules of court made pursuant to statute: John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at [13] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). Service of process outside Australia is governed by Div 10.4 of the Rules, which was substantially amended with effect from 13 January 2023. As observed by Moshinsky J in The Noco Company v Hong Kong Haowei Technology Co Ltd [2023] FCA 533 at [9], the main change was to remove the requirement for leave before service of an originating application outside of Australia in the categories of cases set out in r 10.42. This proceeding falls within a number of those categories and, accordingly, leave to serve the originating application on Ms Xiong outside Australia is not required.

Under r 10.43B, a person who is to be served outside Australia with an originating application must also be served with a notice in accordance with Form 26A which informs the person of the scope of the Court’s jurisdiction, the grounds alleged by the applicant to found jurisdiction, and the person’s right to challenge service or the jurisdiction of the Court or to file a conditional appearance.

Under r 10.46, a document to be served outside Australia need not be personally served on a person so long as it is served on the person in accordance with the law of the country in which service is effected.

As China is a party to the Hague Convention, service on its residents is ordinarily to be effected in accordance with the articles of that Convention and Div 10.6 of the Rules, which sets out the process for effecting service in a Hague Convention country.

The applicant has applied for an order of deemed service under r 10.48 of the Rules. Under that rule, a party may apply for an order that a document is taken to have been served if:

The applicant has satisfied me that condition (b) is satisfied. The requirement in rule 10.48 that a document has been brought to the attention of a person does not require that the person “accorded it attention or acknowledged it”: British American Tobacco Australasia Ltd v Taleb (No 1) [2012] FCA 1065 (Taleb) at [46] (Dodds-Streeton J); Australian Competition and Consumer Commission v Safety Compliance Pty Ltd (in liq) (No 3) [2016] FCA 303 at [10] (Farrell J). The requirement will be satisfied where there is evidence of actions, steps and circumstances which, alone or in combination, support an inference that the documents have been brought to the relevant person’s attention on the balance of probabilities: Taleb at [50] (Dodds-Streeton J). See also Hall v Hemant Investments Pty Ltd [2025] FCA 776 at [9] (Longbottom J). In the present case, I am satisfied that the initiating documents have been physically given to Ms Xiong’s father, who has said that he will give the documents to his daughter, and there has been direct communication with Ms Xiong via her mobile phone number of those circumstances.

The question whether condition (a) is fulfilled is more difficult. The State has not attempted service on Ms Xiong in accordance with the Hague Convention. Instead, it has attempted to serve Ms Xiong personally in China. That has not resulted in Ms Xiong accepting service and submitting to the jurisdiction of this Court. In support of its application that it is not practicable to serve the initiating documents on Ms Xiong in accordance with the Hague Convention, the State has adduced evidence that the time for execution of a request under the Hague Convention by China’s nominated Central Authority, the International Legal Cooperation Center, was around six months. The State submits that a delay of six months, in the circumstances of this case, renders service in accordance with the Hague Convention not practicable.

The phrase “not practicable” appears in both rule 10.24 (which addresses substituted service) and rule 10.48 (which addresses deemed service outside Australia) and has been construed in the same manner. The authorities have consistently stated that, while inconvenience to a party does not satisfy the test of “not practicable”, it is not necessary to prove that it is impossible to effect service in accordance with the Rules. In Sanum Investments Limited v ST Group Co, Ltd (No 2) [2019] FCA 1047, Foster J stated (at [148]):

Although the State has not attempted service on Ms Xiong in accordance with the Hague Convention, a significant impediment to such service is the fact that the State does not presently have a residential address for Ms Xiong. The evidence indicates that the Pingliang Road Address, which was provided to the State by the plaintiffs, is the residential address of Ms Xiong’s father and is not the residential address of Ms Xiong. The inability to obtain an address for service is a relevant factor in assessing whether it is not practicable to effect service under the Hague Convention: see Australian Competition & Consumer Commission v Kokos International Pty Ltd [2007] FCA 2035 at [18] (French J).

The question of practicability in this case involves a balance between two competing considerations. The first are considerations of international comity and the importance of personal service. In Park v Tschannen [2016] FCA 137; 341 ALR 452, Edelman J observed (at [16]):

The second are considerations of efficiency and practicality in the conduct of these proceedings, as promoted by s 37M of the Federal Court of Australia Act 1976 (Cth). In that regard, it is relevant that the proceeding was initiated some time ago and that service has now been effected on all parties other than Ms Xiong. It is also relevant that the State does not have a current address for service for Ms Xiong. It is therefore possible that service under the Hague Convention will take longer than the six months that is estimated on the website maintained by the Hague Conference on Private International Law.

On balance, I consider that in the circumstances of this proceeding it is not practicable for the State to serve Ms Xiong under the Hague Convention because of the lengthy delay that would be involved in effecting service and the possibility that service would not ultimately be successful.

In conclusion, I will make an order under r 10.48 that the initiating documents are taken to have been served on Ms Xiong, and ancillary orders sought by the State.