McCabe, in the matter of Sargon Capital Pty Limited (receivers and managers appointed) (in liq) [2023] FCA 112

CHEESEMAN J: 1 The plaintiffs, who are the liquidators of Sargon Capital Pty Limited (Receivers and Managers Appointed) (In Liquidation), obtained orders from a Registrar of the Court under ss 596A and 596B of the Corporations Act 2001 (Cth) for the issue of summonses for examination and orders for production against certain individuals located outside Australia. Those orders were made subject to the plaintiffs obtaining leave to serve the relevant documents outside Australia under r 10.44 of the Federal Court Rules 2011 (Cth). The present application is for leave under r 10.44. 2 It is unnecessary to detail the circumstances of the liquidation of Sargon and the nature of the enquiries being made by the liquidators. These matters are the subject of detailed evidence read in support of this application given by Mr Andrew McCabe, one of the liquidators, in an affidavit sworn on 8 December 2022. That affidavit was sworn in support of the orders sought before the Registrar under ss 596A and 596B of the Act. 3 The individuals to be served if leave is granted reside in the United States of America and the United Kingdom. Division 10.4 of the Rules governs service outside of Australia. Between the time the evidence was filed in support of the application under ss 596A and 596B in December 2022 and the hearing of this leave application, the relevant rule, being r 10.44, was amended. Under the previous iteration of the rule, it was a requirement that the applicant serve in support of the application an affidavit that included information identified in r 10.43(3)(a) to (c). The matters to be covered included the name of the foreign country where the person to be served is or is likely to be, the proposed method of service, and that the proposed method of service is permitted by the relevantly applicable convention or law of the foreign country. 4 On this application, each of those matters was addressed in the affidavit of Blake O'Neill, solicitor for the plaintiffs, which was affirmed on 9 December 2022. While it is no longer an express requirement of r 10.44 as amended to address these matters, the evidence is relevant to the issue of leave. The foreign country where the relevant documents are to be served is, in respect of four of the individuals, the United States of America, and in respect of the fifth individual, the United Kingdom. The proposed method of service is, in respect of the individuals residing in the United States, by a private agent or process server. The proposed method of service in respect of the individual residing in the United Kingdom is by solicitor. In this case, the relevantly applicable convention in both destination countries is the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965 (the Hague Convention). I am satisfied on the evidence given by Mr O'Neill that, in each case, the proposed method of service is in accordance with the Hague Convention and is a permitted means of service in the relevant destination country. 5 My attention was drawn prior to the hearing to the decision in Georges (Liquidator), in the Matter of SIRA Pty Limited (In Liquidation) [2022] FCA 768 where orders were made for service out of the jurisdiction in relation to a destination country which was not a signatory to the Hague Convention. In that case, McEvoy J made observations at [9] to [10], and [14] to [17] in relation to the principle of international comity which are equally pertinent in the present context. The context is similar in that his Honour discusses the principle of international comity in the context of ss 596A and 596B of the Act. Having considered the matters of international comity, as identified by McEvoy J, in the present context and having regard to the evidence that has been led on this application, I am satisfied that the importance of international comity does not preclude the grant of leave to the plaintiffs to serve the documents the subject of the application out of Australia. 6 On the evidence before me, I am satisfied that it is appropriate to make orders in accordance with the plaintiffs' proposed short minutes. Accordingly, I will make orders substantially in the form sought. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cheeseman.