Oztech Pty Ltd v Public Trustee of Queensland

YATES J: 1 On 4 June 2018, I published reasons in which I found that the respondent had not breached his statutory and equitable (including fiduciary) duties in the manner alleged by the applicant in this proceeding. I also found that the respondent did not engage in unconscionable conduct as the applicant had alleged. For completeness, I considered the applicant's detailed case on causation, but was not persuaded that that case was made out: Oztech Pty Ltd v Public Trustee of Queensland (No 15) [2018] FCA 819. At that time, I made an order that the parties bring in draft orders giving effect to my reasons. I also ordered that if agreement could not be reached on the form of the orders, the parties jointly notify my Associate of that fact, identifying the areas of disagreement. 2 On 13 June 2018, I formally dismissed the proceeding and made orders for the filing of evidence and submissions on the question of costs - the question of costs not having been agreed between the parties. I also appointed 22 August 2018 as the hearing date for the respondent's application for costs. 3 On 20 July 2018, the respondent filed an interlocutory application seeking orders that his costs of the proceedings, including reserved costs, but excluding those costs already the subject of an order for costs, be paid by the applicant and by International Litigation Partners (No. 9) Pte Ltd (ILP), a litigation funder. The interlocutory application also sought orders that the respondent's costs be assessed on a particular basis, and that the security for his costs paid into Court by the applicant, plus any interest accrued thereon, be paid to him. 4 On the same day, the respondent filed another interlocutory application seeking an order that he be given leave pursuant to r 10.43(2), or alternatively r 10.44(1) of the Federal Court Rules 2011 (Cth) (the Rules), to serve the first-mentioned interlocutory application on ILP, by delivering a copy of the interlocutory application to ILP's registered office in Singapore, in accordance with s 387 of the Companies Act (Singapore, cap 50, 2006 rev ed) of the Republic of Singapore. 5 That application is now before me. It has become necessary to deal with it because ILP has declined to respond to numerous communications from the respondent and has also not instructed the solicitors for the applicant to accept service on its behalf. In this connection, I note that ILP is a company incorporated in Singapore. It appears to have no place of business in Australia and, on the material before me, does not appear to have instructed any Australian law firm to act on its behalf. 6 The respondent has raised the question whether r 10.43 or r 10.44 applies to this case. Rule 10.43 is directed to service of an originating application on a person in a foreign country. Rule 10.44 is directed to the service of a document other than an originating application on a person in a foreign country. 7 Rule 10.43 provides: (1) Service of an originating application on a person in a foreign country is effective for the purpose of a proceeding only if: (a) the Court has given leave under subrule (2) before the application is served; or (b) the Court confirms the service under subrule (6); or (c) the person served waives any objection to the service by filing a notice of address for service without also making an application under rule 13.01. Note: A respondent may apply to set aside an originating application or service of that application - see rule 13.01. (2) A party may apply to the Court for leave to serve an originating application on a person in a foreign country in accordance with a convention, the Hague Convention or the law of the foreign country. (3) The application under subrule (2) must be accompanied by an affidavit stating: (a) the name of the foreign country where the person to be served is or is likely to be; and (b) the proposed method of service; and (c) that the proposed method of service is permitted by: (i) if a convention applies - the convention; or (ii) if the Hague Convention applies - the Hague Convention; or (iii) in any other case - the law of the foreign country. (4) For subrule (2), the party must satisfy the Court that: (a) the Court has jurisdiction in the proceeding; and (b) the proceeding is of a kind mentioned in rule 10.42; and (c) the party has a prima facie case for all or any of the relief claimed in the proceeding. Note 1: The law of a foreign country may permit service through the diplomatic channel or service by a private agent - see Division 10.5. Note 2: Rules 10.63 to 10.68 deal with service of local judicial documents in a country, other than Australia, that is a party to the Hague Convention. Note 3: The Court may give permission under subrule (4) on conditions - see rule 1.33. (5) A party may apply to the Court for leave to give notice, in a foreign country, of a proceeding in the Court, if giving the notice takes the place of serving the originating application. (6) If an originating application was served on a person in a foreign country without the leave of the Court, a party may apply to the Court for an order confirming the service. (7) For subrule (6), the party must satisfy the Court that: (a) paragraphs (4)(a) to (c) apply to the proceeding; and (b) the service was permitted by: (i) if a convention applies - the convention; or (ii) if the Hague Convention applies - the Hague Convention; or (iii) in any other case - the law of the foreign country; and (c) there is a sufficient explanation for the failure to apply for leave. 8 Rule 10.44 provides: (1) A party may apply to the Court for leave to serve a document filed in or issued by the Court, other than an originating application, on a person in a foreign country in accordance with a convention, the Hague Convention or the law of the foreign country. Note 1: The law of a foreign country may permit service through the diplomatic channel or service by a private agent - see Division 10.5. Note 2: Rules 10.63 to 10.68 deal with service of local judicial documents in a country, other than Australia, that is a party to the Hague Convention. Note 3: The Court may give permission under subrule (4) on conditions - see rule 1.33. (2) An application under subrule (1) must be accompanied by an affidavit that includes the information mentioned in paragraphs 10.43(3)(a) to (c). (3) If a document, other than an originating application, was served on a person in a foreign country without the leave of the Court, a party may apply to the Court for an order confirming the service. (4) For subrule (3), the party must satisfy the Court that: (a) the service was permitted by: (i) if a convention applies - the convention; or (ii) if the Hague Convention applies - the Hague Convention; or (iii) in any other case - the law of the foreign country; and (b) there is a sufficient explanation for the failure to apply for leave. 9 The matter of present significance is that, under r 10.43(4), the party seeking leave must satisfy the Court that it has jurisdiction in the proceeding; that the proceeding is of a kind mentioned in r 10.42 (to which I make later reference); and that the party has a prima facie case for all or any of the relief claimed in the proceeding. Based on the definition of "originating application" in Sch 1 to the Rules, and the definition of "proceeding" in s 4 of the Federal Court of Australia Act 1976 (Cth) (the Act), the better view, it seems to me, is that the present application falls to r 10.43, even though the process deployed by the respondent in seeking his costs is an interlocutory application. It is not, however, necessary for me to reach a final view on that matter because I intend to consider the requirements of r 10.43(4) out of abundant caution, in any event. 10 Whether r 10.43 or r 10.44 is invoked, an affidavit is required, which states 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 either by the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965 (and entered into force on 10 February 1969) (the Hague Convention), another convention, or the law of the foreign country. 11 An affidavit has been filed which satisfies these requirements: see the affidavit of Scott William Sharry, sworn 19 July 2018. I am satisfied that ILP is a company registered in Singapore, where it has its registered office. I note that, in accordance with para 2.4 of Practice Note GPN-OSE, information has been obtained from the website of the Australian Government Attorney General's Department in relation to the appropriate method of transmitting documents for service in Singapore. That information reveals that Singapore is not a party to the Hague Convention, or any other bilateral treaty with Australia concerning service of Australian legal documents. The respondent therefore proposes to engage a process server to serve the interlocutory application at ILP's registered office. I have before me an expert report prepared by Thio Shen Yi SC, who was admitted as an advocate and solicitor to the Supreme Court of the Republic of Singapore in 1993. He has practised as a lawyer in Singapore for the last 25 years, and was appointed Senior Counsel in and for the Republic of Singapore under s 30 of the Legal Profession Act (Singapore, cap 161, 2009 rev ed). The effect of that report is that service will be permitted if the interlocutory application is served at the registered office of ILP, under s 387 of the Companies Act of Singapore. 12 As to the requirements of r 10.43(4), I am satisfied that the Court has jurisdiction to make the award of costs that is sought. I am also satisfied that the application for costs is a proceeding of the kind provided for in r 10.42. I refer, in that regard, to item 15 of the table which identifies proceedings seeking any relief or remedy under an Act. The relief sought here is costs under s 43 of the Act. 13 Further, I am satisfied that the respondent has a prima facie case for that relief. In the context of service out of the jurisdiction, this is not an onerous requirement in the normal course, and the present case is no exception. Satisfaction of this requirement does not call for a substantial inquiry. The respondent has filed written submissions which advance reasons why the Court should be satisfied in the present case that a prima facie case exists. I will not rehearse those reasons now. Suffice it to say that I am satisfied that the threshold for granting leave to serve out of the jurisdiction has been met, having regard to those submissions. 14 For these reasons, orders will be made as sought. 15 Before making those orders, I record that Ms Goodman, who is with the solicitors instructed by the applicant, has appeared at the hearing today for the purpose of drawing the Court's attention to a draft set of orders which, I am informed, were advanced by the applicant and ILP for the respondent's consideration, but rejected by him. The respondent has raised no objection to me seeing the terms and form of the orders proffered, which I have marked MFI 1. Mr O'Sullivan, who appears as Senior Counsel for the respondent, addressed a number of submissions to me concerning the adequacy of the way in which those proposed orders are framed and were proffered. He identified a number of shortcomings in that regard. Without going through all the criticisms, I do note that the orders proposed do not seem to involve ILP submitting to the jurisdiction of the Court. This is a substantial defect, particularly if the respondent were later to be put to the trouble and expense of seeking to enforce those orders (if made) in Singapore. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.

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