Plaintiff v Defendant

(1) this Court has jurisdiction to deal with the subject matter of this proceeding (the 'jurisdictional issue'); and

(2) the defendant has been properly served (the 'service issue').

2 While it is clear that the jurisdictional issue has been satisfied, it is less clear that the service issue has been satisfied. This is notwithstanding that, at the defendant's request, the defendant was served via its lawyers in Texas. The plaintiff submitted that this service was effected in accordance with art 10(c) of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the 'Hague Convention').

3 However, it is unclear whether ord 80 of the Rules (which incorporates the means of service in arts 3 to 6 of the Hague Convention) provides an exclusive code for the service of such documents in an overseas country that is a party to the Hague Convention (a 'Convention country'), such as the United States, or whether the Rules allow for service to be effected by other provisions of the Hague Convention.

4 These are difficult questions and, in deciding them, I am conscious that I have not had the benefit of a contradictor. Nevertheless, for the reasons that follow, I have concluded that:

(1) r 7.09 is the primary rule specifying the modes of service of an originating process outside Australia (excluding New Zealand), namely personal service or service that is in accordance with the laws of the country in which service is effected;

(2) ord 80 does not provide an exclusive code for service on a party in a Convention country but a mechanism for the efficient facilitation of requests for service and certification of service consistent with arts 3 to 6 of the Hague Convention; and

(3) if service on a party in a Convention country in accordance with art 10(c) of the Hague Convention meets the requirements of r 7.09, that will be valid service.

2. NATURE OF THE APPLICATION AND THE PROCEEDING

5 In order to determine the jurisdictional issue, it is necessary to say something about the nature of this proceeding. In its statement of claim, the plaintiff claims that the defendant breached a written agreement for the supply of personal protective equipment entered into between them on or about 9 April 2020 (the 'Agreement'). In substance, the plaintiff alleges that:

(1) pursuant to the Agreement, the defendant agreed to provide and deliver to the plaintiff 550,000 FDA-approved masks which would limit the exposure of wearers to the COVID-19 virus;

(2) pursuant to the Agreement, on 9 April 2020 the plaintiff placed a purchase order for the 550,000 masks identifying delivery in China or alternatively Western Australia by 22 April 2020 and paid USD2,667,500 to the defendant for those masks;

(3) in breach of the Agreement, the defendant only delivered 2,000 masks; and

(4) on 4 June 2020, the plaintiff demanded the return of the sum of USD2,667,500 and terminated the Agreement.

6 I note it is alleged that it was a written term that the Agreement is governed by the laws of Australia.

(1) USD2,657,800 being the value of 548,000 masks at the agreed price of USD4.85; and

(2) AUD9,053.10 being costs incurred for the purpose of receiving delivery of the masks in Australia.

8 While the application is made under r 21.04 of the Rules, r 7.07 provides that, if an originating process is served on a person out of Australia and the person does not file an appearance, the party serving the document may not proceed against the person served except by leave of the Court.

9 The plaintiff relies upon the affidavits of Jonathan Kuan Min Chan affirmed 12 May 2021, 27 May 2021, 18 June 2021 and 29 September 2021.

10 In order to succeed in this application, the plaintiff must satisfy the jurisdictional issue and the service issue, both of which must be determined in accordance with the Rules. As a result, it is necessary to consider the relevant Rules, namely ords 7 and 80. Before doing so, I wish to note the provisions of the Hague Convention which are relevant to the understanding of ord 80 in particular.

11 According to the Explanatory Report of the Hague Convention, the objective may be summarised as follows:

1. To establish a system which, to the extent possible, brings actual notice of the document to be served to the recipient in sufficient time to enable him to defend himself.
2. To simplify the method of transaction of these documents from the requesting State to the requested State.

1. To facilitate proof that service has been effected abroad, by means of certificates contained in a uniform model.[1]

12 The Hague Convention contains three chapters: Chapter I headed 'Judicial Documents', Chapter II headed 'Extrajudicial Documents' and Chapter III headed 'General Clauses'. It is Chapter I, which contains arts 2 to 16, that is presently relevant.

13 First, arts 2 to 6 provide in summary for a mechanism for formal reception by contracting States of requests for service from other contracting States. Article 2 provides for each contracting State to establish a Central Authority. Article 3 provides for an authority in the State of origin to send to the Central Authority of the State of destination a request annexing the document to be served. As to the method of service, art 5 provides:

The Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency, either -

1. by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, or
2. by a particular method requested by the applicant, unless such a method is incompatible with the law of the State addressed.

Subject to sub-paragraph (b) of the first paragraph of this Article, the document may always be served by delivery to an addressee who accepts it voluntarily.

If the document is to be served under the first paragraph above, the Central Authority may require the document to be written in, or translated into, the official language or one of the official languages of the State addressed.

That part of the request, in the form attached to the present Convention, which contains a summary of the document to be served, shall be served with the document.

14 Article 6 then provides for the Central Authority to complete a certificate confirming service. It provides:

The Central Authority of the State addressed or any authority which it may have designated for that purpose, shall complete a certificate in the form of the model annexed to the present Convention.

The certificate shall state that the document has been served and shall include the method, the place and the date of service and the person to whom the document was delivered. If the document has not been served, the certificate shall set out the reasons which have prevented service.

The applicant may require that a certificate not completed by a Central Authority or by a judicial authority shall be countersigned by one of these authorities.

The certificate shall be forwarded directly to the applicant.

15 Second, arts 8 to 10 then seek to preserve certain means of service within a contracting State subject to objection or opposition. Articles 8 and 9 provide:

8 Each Contracting State shall be free to effect service of judicial documents upon persons abroad, without application of any compulsion, directly through its diplomatic or consular agents.

Any State may declare that it is opposed to such service within its territory, unless the document is to be served upon a national of the State in which the documents originate.

9 Each Contracting State shall be free, in addition, to use consular channels to forward documents, for the purpose of service, to those authorities of another Contracting State which are designated by the latter for this purpose.

Each Contracting State may, if exceptional circumstances so require, use diplomatic channels for the same purpose.

Provided the State of destination does not object, the present Convention shall not interfere with -

1. the freedom to send judicial documents, by postal channels, directly to persons abroad,
2. the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,

1. the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.

17 I note in passing that the United States of America, which is a signatory to the Hague Convention, does not object to service being effected pursuant to art 10.[2]

18 Third, arts 15 and 16 deal with judgment in default of appearance and setting aside of any such default judgment respectively. Article 15 provides in summary that, if an originating process has been served under these provisions of the Hague Convention, then judgment shall not be given unless it is established that:

a) the document was served by a method prescribed by the internal law of the State addressed for the service of documents in domestic actions upon persons who are within its territory, or

b) the document was actually delivered to the defendant or to his residence by another method provided for by this Convention,

and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend.

19 Further, art 15 provides that each contracting State shall be free to declare that the judge may give judgment even if no certificate of service or delivery has been received: (a) if the document was transmitted by one of the methods provided for in the Convention; (b) a period of time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document; and (c) no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the State addressed.

20 Article 16 provides in summary for a judge to relieve a defendant from the effects of the expiration of the time for appeal from the judgment if satisfied that the defendant, without any fault on his or her part, did not have knowledge of the document in sufficient time to defend, or knowledge of the judgment in sufficient time to appeal, and the defendant has disclosed a prima facie defence to the action on the merits.

21 Order 7 is headed 'Service out of Australia'. It is divided into two parts. Part 1 consisting of rr 7.01-7.09 is headed 'Service out of Australia'. Part 2 consisting of rr 7.09.1-7.15 is headed 'Service in foreign country'. Changes were made in 2016[3] based on model harmonised rules in the various Australian jurisdictions. As set out in the helpful and thorough analysis of Macaulay J in Andrianakis v Uber Technologies (Ruling No 1),[4] the effect of the amendments was to expand the powers of this Court to deal with claims outside Australia - called its adjudicatory jurisdiction - by providing the circumstances in which the Court's originating processes could be served outside Australia. As I set out below, relevantly pt 1 of ord 7 was substituted but r 7.09 (previously r 7.03) was not removed.

22 I note that, for the purpose of these reasons, I have considered the explanatory memorandum to each of the Supreme Court (Chapter I Amendment No. 14) Rules 2009, the Supreme Court (Chapter I Amendment No. 19) Rules 2010 and the Supreme Court (Service Out of Australia Amendment) Rules 2016. However, I have found them of limited assistance in determining the issues in this proceeding.

23 As to pt 1, r 7.01 provides that this part does not apply to service in New Zealand of any originating process which may be served under the Trans-Tasman Proceedings Act 2010 (Cth). Rule 7.02 relevantly provides that an originating process may be served out of Australia without leave in the following cases:

(b) when the claim is for ... damages or other relief in respect of a breach of, a contract which -

(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 cognizable in an Australian court;

24 Rule 7.03 provides that, where service is not allowed under r 7.02, under certain circumstances the Court may grant an application for leave to serve an originating process out of Australia.

25 Rule 7.05 provides that, if a person is to be served out of Australia, the person shall also be served with a notice in Form 7AAA informing the person, in summary, of the scope of the Court's jurisdiction, the grounds alleged by the plaintiff to found jurisdiction, and the person's right to apply to set aside the originating process or its service on the person or to dismiss or stay the proceeding.

26 As noted above, r 7.07 provides that, if an originating process is served on a person out of Australia and the person does not file an appearance, the party serving the document may not proceed against the person served except by leave of the Court.

27 Rule 7.09 is headed 'Mode of service'. It was previously r 7.03.[5] It provides:

A document to be served out of Australia need not be served personally on a person so long as it is served on the person in accordance with the laws of the country in which service is effected.

28 Rule 7.09.1 provides that pt 2 applies to the service of any document for the purpose of a proceeding in the Court in a country that is not a signatory to the Hague Convention or a country which the Attorney-General by instrument filed in the proceeding specifies. The note to this rule provides:

Order 80 applies to countries to which the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters applies.

29 Rules 7.10 to 7.13 provide for lodging with the Prothonotary of certain documents which are then to be served, together with a request for a sealed copy of those documents to be transmitted to the relevant country for service on the specified person. Those documents are then to be sent by the Prothonotary to the Attorney-General for transmission for service. Rule 7.14 provides that, where the Prothonotary has sent documents to the Attorney-General and afterwards a certificate purporting to be a certificate as to service or attempted service by a judicial authority or other responsible person in the country concerned is filed, the certificate shall be evidence of the matters stated in the certificate. Of significance, pt 2 of ord 7 does not stipulate a means or method of service.

30 Order 80 is headed 'Service under the Hague Convention'. It commenced in 2010 as a result of Australia's ratification of the Hague Convention. It gives effect to arts 3 to 6 and arts 15 and 16 of the Hague Convention in Victoria.

31 It contains a number of parts. Relevantly, pt 1 consisting of rr 80.01 and 80.02 is headed 'Preliminary'. Part 2 consisting of rr 80.03 to 80.08 is headed 'Service abroad of local judicial documents'. Part 3 consisting of rr 80.09 to 80.12 is headed 'Default judgment following service abroad of initiating process'.

The provisions of this Order prevail to the extent of any inconsistency between those provisions and any other provisions of these Rules.

(1) Subject to paragraph (2), this Part applies to service in a Convention country of a local judicial document.

(2) This Part does not apply if service of the document is effected, without application of any compulsion, by an Australian diplomatic or consular agent mentioned in Article 8 of the Hague Convention.

34 Part 2 then provides for the method of service in arts 3 to 6 of the Hague Convention to be given express effect.

35 First, r 80.04 provides that a person may apply to the Prothonotary, in the Prothonotary's capacity as a forwarding authority, for a request for service in a Convention country of a local judicial document.

36 Second, r 80.05 provides that, if the Prothonotary is satisfied that the application complies with r 80.04, the Prothonotary must sign the request for service abroad and forward two copies of the relevant documents to either the Central Authority for the Convention country or to a nominated additional authority for the Convention country for service to be effected. This incorporates the effect of art 3 of the Hague Convention in the Rules.

37 Third, r 80.06(1) provides that, on receipt of a certificate of service in due form in relation to a local judicial document to which a request for service abroad relates, the Prothonotary must arrange for the certificate to be filed. Rule 80.06(2) provides that a certificate of service is in 'due form' relevantly if it is in accordance with Part 2 of Form 80A ('Form 80A'), and it has been completed by a certifying authority for the Convention country in which service was requested. This rule incorporates the effect of art 6 of the Hague Convention in the Rules.

38 Rule 80.08 provides that such a certificate that certifies service of the document was effected on a specified date is, in the absence of any evidence to the contrary, sufficient proof that:

(1) service of the document was effected by the method specified in the certificate on that date; and

(2) if that method of service was requested by the applicant, that method is compatible with the law in force in the Convention country in which service was effected.

39 Order 80 does not in its terms expressly refer to the methods of service in art 5 of the Hague Convention. However, art 5 is incorporated in Form 80A required by r 80.06(2) which expressly provides that the certificate of service must specify that service has been effected:

in one of the following methods authorised by Article 5:

(a) in accordance with the provisions of subparagraph (a) of the first paragraph of Article 5 of the Convention*:

(b) in accordance with the following particular method*:

(c) by delivery to the addressee, who accepted it voluntarily*.

40 Form 80A indicates that the alternatives in (a) to (c) of the form not relied upon should be deleted.

41 Part 3 then deals with default judgment in respect of an originating process served under pt 2 of ord 80. Rule 80.10 provides for restrictions on the power of the Court to enter default judgment if a certificate of service is filed in accordance with r 80.06. In that event, pursuant to r 80.10(2), default judgment may not be entered against the defendant unless the Court is satisfied that:

(a) the initiating process was served on the defendant -

(i) by a method of service prescribed by the internal law of the Convention country for the service of documents in domestic proceedings on persons who are within its territory; or

(ii) if the applicant requested a particular method of service (being a method under which the document was actually delivered to the defendant or to his or her residence) and that method is compatible with the law in force in that country, by that method; or

(iii) if the applicant did not request a particular method of service, in circumstances where the defendant accepted the document voluntarily; and

(b) the initiating process was served in sufficient time to enable the defendant to enter an appearance in the proceedings.

42 I note the relevant alternative methods of service referred to in r 80.10(2)(a)(i) to (iii) are for the most part the methods of service provided for in art 5 of the Hague Convention. In my view, this provision reinforces the incorporation of the methods of service in art 5 of the Hague Convention into ord 80.

43 Sufficient time is defined in r 80.10(3) to mean 42 days from the date specified in the certificate of service as the date on which service was effected or such lesser time as the Court considers sufficient to enable the defendant to enter an appearance in the proceedings. Thus, r 80.10 incorporates the substance of the first paragraph of art 15 of the Hague Convention in the Rules.

44 Further, r 80.11 provides that if a certificate of service has not been filed, or a certificate of service has been filed which states that service has not been effected, and the defendant has not appeared, default judgment may not be given against the defendant unless the Court is satisfied that the initiating process was forwarded to the Central Authority, a period of time that is adequate in the circumstances (not less than 6 months) has elapsed since the date upon which the initiating process was forwarded, and every reasonable effort has been made to obtain the certificate of service or to effect service as the case requires. Thus, r 80.11 incorporates the substance of the second paragraph of art 15 of the Hague Convention in the Rules.

45 Finally, r 80.12 provides that the Court may set aside a default judgment entered pursuant to pt 3 of ord 80 if satisfied that the defendant, without any fault on his or her part, did not have knowledge of the initiating process in sufficient time to defend the proceeding and has a prima facie defence on its merits. This rule incorporates the substance of art 16 of the Hague Convention in the Rules.

46 In this case, service was not effected in accordance with ord 80. This is because the plaintiff did not request the Prothonotary of this Court to request that the writ and statement of claim be served via the Central Authority of the United States of America. However, as noted above, the plaintiff contended that service was effected in accordance with art 10(c) of the Hague Convention.

47 On the evidence before me, service was effected, at the defendant's direction, by serving the originating process and Form 7AAA on the defendant's lawyer. Relevantly, there is in evidence:

(1) an email dated 25 January 2021 between the plaintiff's US process server and Mr John English, the president of the defendant, which records that Mr English had received the process server's card and requested the process server contact Mr Chris Gilbert of Gilbert Law PC who 'handles all matters of litigation for us and is authorized to accept service'. Mr Gilbert was copied in on the email;

(2) an email from Mr Gilbert to the plaintiff's process servers dated 25 January 2021 advising when he could accept service;

(3) an affidavit of service of Mr Mitchell Draeger sworn 29 January 2021 in which he deposed to delivering a true copy of the writ, statement of claim, notice to the defendant served out of Australia (being Form 7AAA), and a copy of ord 7 on Mr Gilbert on 28 January 2021 at 10:20am; and

(4) in his 28 January 2021 affidavit, Mr Draeger deposed that he was over 18 years of age, had no interest in this proceeding and had proper authority in the jurisdiction in which the process was delivered to effect service.

48 Further, there is in evidence the opinions of Mr Jamie Lavergne Bryan, a member, among other bars, of the State bar of Texas dated 21 May 2021, 17 June 2021 and 28 September 2021. Mr Bryan expressed the opinion that service in this case was valid service in accordance with the law of the State of Texas.

49 As to service in accordance with the law of the State of Texas, Mr Bryan opined that:

(1) the Due Process clause in the United States Constitution prohibits courts from exercising personal jurisdiction over a defendant unless a defendant has proper notice of the relevant proceeding; and

(2) to meet this requirement, each State in the United States has adopted its own rules of civil procedure, relevantly the Texas Rules of Civil Procedure.

50 As to the fact that service was not effected on the defendant company itself, Mr Bryan noted that service occurred at the written request of Mr English, the president of the defendant. He then opined that Mr English, as president of the defendant, was the company's designated officer under the Texas Rules of Civil Procedure. Mr Bryan expressed the opinion that such a written request 'is generally accepted practice ... [as] a sufficient agreement pursuant to the Texas Rule of Civil Procedure 11 to waive the requirement to personally serve the registered agent and to instead serve the company's attorney as directed by its registered agent.'[6]

51 As to the proper authority of Mr Draeger to effect service, Mr Bryan relied upon and produced r 103 of the Texas Rules of Civil Procedure which relevantly provides that a process including a writ may be served anywhere by:

(1) any sheriff or constable or other person authorized by law,

(2) any person authorized by law or by written order of the court who is not less than eighteen years of age, or

(3) any person certified under order of the Supreme Court [of Texas].

...

But no person who is a party to or interested in the outcome of a suit may serve any process in that suit...

52 Further, Mr Bryan deposed that Mr Draeger has been certified to serve processes in Texas by the Judicial Branch Certification Commission from 31 December 2019 until 31 December 2021 pursuant to chapters 151 and 156 of the Texas Government Code. He produced that certification with Mr Draeger's certification number, being 7995. I note this number is referred to in Mr Draeger's affidavit of service sworn 29 January 2021. Thus, Mr Bryan opined that Mr Draeger met all the requirements to serve a process in the State of Texas at the relevant time.

53 As noted above, r 7.02(b) relevantly provides that service outside Australia is permitted without leave when the claim is for damages or other relief in respect of a breach of contract which was made or entered into in Australia or was by its terms to be governed by Australian law.

54 As a result, I am satisfied that the plaintiff was entitled to serve the writ and statement of claim in this proceeding outside Australia without leave pursuant to r 7.02(b). This is in light of the allegations in the statement of claim. As a result, this Court has jurisdiction in respect of this proceeding.

55 I am satisfied that the defendant's agent was served with the relevant documents under r 7.05. I also have in evidence an email from the plaintiff's Australian solicitors to Mr Gilbert dated 19 March 2021 noting that the defendant had not filed a notice of appearance and advising that, unless one was filed by 9 April 2021, the plaintiff's solicitors would seek instructions to apply for default judgment against the defendant without further notice.

7.1 Unresolved Questions Raised by the Service Issue

56 In written submissions, the plaintiff submitted that it is permissible to effect service on the defendant other than pursuant to ord 80 of the Rules. The plaintiff submitted that ord 80 provides a mechanism by which a party may, but is not bound to, effect service in a Convention country. The plaintiff relies upon art 10(c) of the Hague Convention and, therefore, r 7.09 to have effected service validly.

57 In doing so, the plaintiff relied upon the decision of Gordon J in ACCC v Yellow Page Marketing BV ('Yellow Page Marketing'),[7] a case where service was sought pursuant to art 10(c) of the Hague Convention under the Federal Court Rules 1979 (Cth) ('Federal Court Rules') (now repealed by the Federal Court Rules 2011 (Cth)).

58 As I set out below, the Federal Court Rules were different from the current Rules of this Court. Relevantly the Federal Court Rules contained a provision (ord 8 r 3(3)(c)(ii) and ord 8 r 3(5)(b)(ii)) that allowed service out if 'permitted by ... the Hague Convention', which is not contained in the Rules of this Court. I will deal with her Honour's reasons in due course.

59 Before doing so, in my view, the plaintiff's submissions give rise to the following interrelated questions: does ord 80 provide the exclusive means or method of service in a Convention country and, if not, is service in this case effective service under the Rules, in particular r 7.09?

60 The relationship between r 7.09 and ord 80 has not been previously decided under the Victorian Rules. Indeed, there is little assistance from other jurisdictions in Australia. These issues have been the subject of debate in legal texts.[8] However, I note that the commentary in N J Williams, Civil Procedure Victoria ('Williams') supports the position that ord 80 is 'exclusive':[9]

Service of originating process on a defendant out of Australia should ordinarily be personal, as in the case of service on a defendant within Victoria. However, under this rule [r 7.09], service in another country which is other than personal will be sufficient provided it was carried out in accordance with the law of that country; that is, in accordance with the law for service of originating process of that country.

Service in accordance with the law of the country in which service is effected is a mode of service alternative to personal service. It is not an additional requirement. Thus, personal service on the defendant is sufficient service notwithstanding that the service does not comply with the law of the country of service.

...

Where the Hague service convention applies, the channels of transmission to be used when judicial and extrajudicial documents are to be served, are specified under that convention. The convention deals with the transmission of documents rather than the substantive rule relating to service: see O 80 for further details.

61 Further, Williams states that 'Australia has ratified the Convention ... This means the service on a defendant within a state party to the Hague Service Convention is effected under O 80 and not under r 7.09'.[10]

62 In light of this uncertainty and the views expressed by the learned authors of Williams, I will now address the two related questions which arise from the service issue in light of the submissions of the plaintiff. However, in reaching the conclusion set out below I am conscious, as set out in the introduction to these reasons, that I do not have the benefit of a contradictor.

63 As noted above, the plaintiff submitted that ord 80 does not provide an exclusive code for service of documents in a Convention country, relying upon Yellow Page Marketing. In that case, Gordon J was considering an application for leave to serve an originating process outside Australia pursuant to ord 8 of the Federal Court Rules. Order 8 was the equivalent of pt 1 of ord 7 of the Rules but its terms were very different. Also relevant to the application in Yellow Page Marketing was ord 8A of the Federal Court Rules, which was the equivalent of ord 80 of the Rules. Indeed for all relevant purposes ord 8A was the same as ord 80.

64 Relevantly, ord 8 r 3 of the Federal Court Rules provided:

3 Application for leave to serve originating process outside Australia

(1) Service of an originating process 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 (5); or

(c) the person served waives any objection to the service by entering an appearance in the proceeding.

(2) The Court may give leave to a party to serve an originating process on a person in a foreign country in accordance with a convention, the Hague Convention or the law of the foreign country, on such terms and conditions as it considers appropriate, if the Court is satisfied that:

(a) the Court has jurisdiction in the proceeding; and

(b) the proceeding is of a kind mentioned in rule 2; and

(c) the person seeking leave has a prima facie case for all or any of the relief claimed by the person in the proceeding.

Note 1 The law of a foreign country may permit service through the diplomatic channel or service by a private agent.

Note 2 Order 8A, Division 2 deals with service of local judicial documents in a country, other than Australia, that is a party to the Hague Convention.

(3) The evidence on an application for leave under subrule (2) must include the following:

(a) the name of the foreign country where the person to be served is or is likely to be;

(b) the proposed method of service;

(c) a statement 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) Nothing in this rule prevents the Court from giving leave to a person to give notice, in a foreign country, of a proceeding in the Court on the basis that giving the notice takes the place of serving the originating process in the proceeding.

(5) If an originating process was served on a person in a foreign country without the leave of the Court, the Court may, by order, confirm the service if the Court is satisfied that:

(a) paragraphs (2) (a), (b) and (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) the failure to apply for leave is sufficiently explained.

65 I note in passing that ord 8 r 6 of the Federal Court Rules appears to be an equivalent of r 7.09 of the Rules but which Gordon J was not called on to consider. Order 8 r 6 of the Federal Court Rules provided:

A document that is to be served on a person in a foreign country need not be served personally on the person if it is served on the person in accordance with the law of the foreign country.

66 Order 8A of the Federal Court Rules mirrored ord 80 of the Rules. Relevantly:

(1) ord 8A r 2 provided that the provisions of this order prevailed to the extent of any inconsistency between those provisions and any other provisions of the Federal Court Rules, mirroring r 80.02 of the Rules;

(2) ord 8A r 3(1) provided that the division applied to service of a local judicial document in a Convention country, mirroring r 80.03(1) of the Rules;

(3) ord 8A r 3(2) provided that the division did not apply if service is effected in accordance with art 8 of the Hague Convention, mirroring r 80.03(2) of the Rules;

(4) ord 8A r 4 provided that a person 'may apply to the Registrar, in the Registrar's capacity as a forwarding authority, for a request for service' of a local document in a Convention country, mirroring r 80.04(1) of the Rules;

(5) ord 8A rr 5-8 then set out the process in accordance with arts 2 to 6 of the Hague Convention, mirroring rr 80.05-80.08 of the Rules.

67 In Yellow Page Marketing, the applicant submitted that ord 8 r 3 created a hierarchy whereby, relevantly, if the Hague Convention applies, then service is to be effected in a manner permitted by the Hague Convention (including art 10(c)). Further, it was submitted that despite the express wording of ord 8A, ord 8 r 3(3)(c)(ii) was to be construed as providing for methods of service permitted under the Hague Convention in addition to those referred to in ord 8A. Order 8 r 3(3)(c)(ii) was relevant given that leave was being sought to serve the relevant process out of Australia. However, ord 8 r 3(5)(b)(ii) which was in similar terms, applied where leave had not been sought.

68 In determining the application, Gordon J considered the language of the Federal Court Rules in the context of the relevant provisions of the Hague Convention which provide a number of mechanisms for effecting service. These include:

(1) arts 2 to 6 which establish a mechanism for formal reception by Convention countries of requests for service from other Convention countries and which was reflected in ord 8A of the Federal Court Rules;

(2) art 8 which provides that each Convention country is free to effect service 'without application of any compulsion', through its diplomatic or consular agents, subject to the right of the State of destination to oppose such service unless it is in relation to a national of the State of origin;

(3) art 9 which leaves Convention countries free to call upon consular or diplomatic channels for service; and

(4) art 10 which provides that, unless the State of destination objects, the Hague Convention shall not interfere with certain methods of service including, relevantly, the freedom to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination (art 10(c)).

69 Justice Gordon considered that art 10(c) was a method of service permitted by the Hague Convention, within the meaning of ord 8 r 3(3)(c)(ii). As to ord 8A, her Honour stated:

18. What then is the role of O 8A Div 2? The ACCC submitted, and I accept, that O 8A Div 2 prescribes steps which mirror and implement only the key elements on the State of origin side of the mechanism for formal service under Arts 3 to 6 of the Hague Convention ...

19. Division 2 of O 8A says nothing about service through diplomatic channels or service by one of the modes not interfered with by Art 10. Accordingly, I do not consider that modes of service not interfered with by Art 10 are precluded by the commencement of O 8A. The amendments made to O 8 including r 3(3)(c)(ii) support the view that there is potential work to be done by the Hague Convention in the context of O 8. That work is not exhausted by the formal mechanism in Arts 3 to 6. If it was intended that the work done by O 8 r 3(3)(c)(ii) was limited to the mode of service required by O 8A Div 2 it would be expected that this would have been expressly stated. It is not. On a literal interpretation of O 8 r 3(3)(c)(ii) that provision can include modes of service not interfered with by Art 10 of the Hague Convention.

20. Another indication that this construction is correct is to be found in the opening words of O 8A r 4(1): "A person may apply to the Registrar ...". This language indicates that the invocation of the formal mechanism under Arts 3-6 of the Hague Convention is discretionary. If the modes of service referred to in Art 10 are available in the case of a given State of destination, then those modes are permitted both by the Hague Convention and by the Federal Court Rules. In the event that one such mode is used, it will be O 8 and O 8 alone which governs the mechanism for effecting service out of the jurisdiction.[11]

70 Thus, it is clear that her Honour concluded that:

(1) service in accordance with art 10(c) was permitted by the Federal Court Rules, relevantly by ord 8 r 3(3)(c)(ii);[12] and

(2) if service was effected in accordance with a mode of service referred to in art 10(c), then it was ord 8 and ord 8 alone (not ord 8A) which governed the mechanism for effecting service out of the jurisdiction.

71 In this case, the plaintiff submitted that, consistent with the reasoning in Yellow Page Marketing, ord 80 merely gives effect to arts 3 to 6 of the Hague Convention and provides a procedural mechanism for effecting service pursuant to those articles. In support of this construction, the plaintiff relied on the reasoning of Gordon J at [20] and by analogy the use of the word 'may' in r 80.04(1).

72 Further, the plaintiff submitted that no procedural mechanism (being the forwarding authority) is required if service is effected pursuant to art 10. The plaintiff submitted that, by analogy with Gordon J's reasoning at [19], if it was the intention that ord 80 interfere with the operation of art 10, it would explicitly say so.

73 For my part, while the reasoning of Gordon J is of assistance in determining the service issue under the Rules, it is far from determinative of it. This is because of the difference between ord 8 of the Federal Court Rules (in particular the existence of ord 8 r 3(3)(c)(ii) which was central to her Honour's reasoning) and pt 1 of ord 7 the Rules (which contains no equivalent of ord 8 r 3).

74 However, I agree with the plaintiff's submission that:

(1) Gordon J's comments at [18] can be applied to ord 80 of the Rules, namely ord 80 only gives effect to arts 2 to 6 of the Hague Convention and provides a procedural mechanism for effecting service via a Central Authority pursuant to those articles; and

(2) the use of the word 'may' in r 80.04 is supportive of this construction. The plaintiff relied on the reasoning of Gordon J at [20] and by analogy the use of the word 'may' which indicates that the invocation of the formal mechanism under arts 3 to 6 of the Hague Convention is discretionary or permissive.

75 In light of these comments, I will turn to ord 7 and ord 80 of the Rules.

76 There are a number of high level observations I wish to make which assist in the interpretation of ord 7 and ord 80.

77 First, pt 1 of ord 7 relates to service out of Australia. It addresses a number of matters including the basis upon which the Court obtains jurisdiction to deal with claims involving defendants outside Australia (rr 7.02 and 7.03), leave to proceed against a person served out of Australia in default of appearance (r 7.07) and the mode of service of a document outside Australia (r 7.09).

78 Second, ord 80 then provides a mechanism for formal reception of requests for service of documents from one Convention country to another, for proof of service by certification (pt 2), and for default judgment if that method is adopted (pt 3). In doing so, pt 2 adopts and incorporates the procedure in arts 3 to 6 of the Hague Convention.

79 Third, pt 2 of ord 7 provides a mechanism for formal reception of requests for service of documents in non-Convention countries and for proof of service by certification.

80 It is now necessary to say something further about pt 1 of ord 7. As noted above, it provides the basis upon which the Court obtains jurisdiction to deal with claims involving defendants outside Australia and how service is to be effected. As to the Court's jurisdiction, r 7.02 provides the circumstances in which service of an originating process outside Australia can be effected without the leave of the Court, and r 7.03 provides for service of an originating process outside Australia with the leave of the Court.

81 As to how service is to be effected, as set out in [27] above, r 7.09 which is headed 'Mode of service' provides:

A document to be served out of 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.

82 It is important to note that r 7.09 appears to have been deliberately retained in pt 1 when the Rules were amended in 2016, as referred to in [21] above. Prior to this amendment, r 7.09 was found in r 7.03 in substantially the same terms. Thus, it would appear that this rule is to continue to apply in respect of the mode or method of service outside Australia.

83 There is limited authority on r 7.09. However, it is clear that this rule permits both personal service outside Australia and, as an alternative, service that is in accordance with the laws of the country in which service is effected. As Balmford J concluded in Victorian WorkCover Authority v Orienstar Shipping Corp in relation to the old r 7.03:

the effect of Rule 7.03 is that service according to the law of the foreign country is an alternative to personal service, and accordingly the service effected on Orientstar in the Philippines, in compliance with the requirements for personal service in Victoria, was authorised by that Rule.[13]

84 Therefore, on its proper construction, r 7.09 provides the method of service for originating processes referred to in r 7.02 and r 7.03, namely personal service in accordance with the requirements of Victorian law or service that is in accordance with the laws of the country in which service is effected.

85 It is then necessary to consider pt 2 of ord 7 and ord 80 in light of r 7.09.

86 As to pt 2 of ord 7, as set out above, it relevantly provides a mechanism for formal reception of requests for service of documents in non-Convention countries and for proof of service by certification. The mechanism involves a request to a judicial authority or other responsible person in the relevant country to serve the relevant document via the Prothonotary and the Attorney-General, and in which proof of service is satisfied by a certificate of a judicial authority or other responsible person. Part 2 of ord 7 does not itself prescribe the method by which service is to be effected. Rather, in my view, it is premised on r 7.09 applying, namely that the method of service is either personal service or service in accordance with the law of the country in which service is effected.

87 As to ord 80, as set out above, it provides a mechanism for formal reception of requests for service of documents from one Convention country to another and for proof of service by certification, incorporating the procedure in arts 3 to 6 of the Hague Convention. In contrast to pt 2 of ord 7, I consider that pt 2 of ord 80 prescribes the method by which service is to be effected under ord 80 by incorporating the methods of service in art 5 of the Hague Convention. I refer to my comments set out in [38] to [40] above.

88 Further, it is unclear whether all of the methods of service in art 5 (being service in accordance with the law of the country in which service is effected, by a particular method requested by the applicant if not incompatible with the law of State addressed, or upon delivery to an addressee who accepts the document voluntarily subject to art 5(b)) are also methods of service which would meet the requirements of r 7.09. I am conscious that I have not been assisted by submissions on this question. I will address further below the extent to which the methods of service in art 5 incorporated into ord 80 might not be consistent with the methods of service in r 7.09.

89 In that context, it is necessary to consider the first question referred to in [59] above, i.e. whether ord 80 provides the exclusive means or method of service in a Convention country.

90 I have not found this an easy question to answer. There are features of ord 80 which suggest it may be an exclusive code. For example:

(1) r 80.03(1) provides that this part applies to service in a Convention country;

(2) r 80.03(2) expressly states this part does not apply if service is effected under art 8 of the Hague Convention but says nothing about art 10;

(3) r 80.02 provides that ord 80 will apply to the extent of any inconsistency with any other provision of the Rules;

(4) the certificate of service requires one of the methods of service in art 5 of the Hague Convention to be established; and

(5) the specific regime for default judgment under rr 80.10 and 80.11.

91 However, I have formed the view, based on the words of ord 80 in its context including ord 7, that it is not an exclusive code for service of documents in a Convention country. Rather, I have formed the view that ord 80 provides a means of service that may, but not must, be adopted by a plaintiff for service in a Convention country. This is because of:

(1) my construction of r 7.09 referred to at [81] to [84] above;

(2) the use of the permissive word 'may' in r 80.04, i.e. 'a person may apply to the Prothonotary, in the Prothonotary's capacity as a forwarding authority, for a request for service in a Convention country of a local judicial document'; and

(3) the fact that neither ord 7 nor ord 80 expressly exclude the operation of art 10.

92 I consider that the use of the permissive 'may' in r 80.04 is of significance notwithstanding the terms of r 80.03(1). Rule 80.04 does not require a party to serve a document in a Convention country in accordance with pt 2 of ord 80: it allows them to do so. In my view, this is a strong indication that ord 80 is not an exclusive code for service of documents in a Convention country. This view is consistent with the comments of Gordon J in Yellow Page Marketing at [20] on the meaning of the word 'may' in the equivalent ord 8A of the Federal Court Rules referred to above.

93 In this regard, I note that arts 8, 9 and 10 each provide alternative means of service to that specified in arts 3 to 6 of the Hague Convention. But they are by no means a subordinate or subsidiary means of service to that specified in arts 3 to 6. As the Hague Convention Handbook states:

These other channels are sometimes referred to as 'subsidiary channels'. However this term... [s]eems to imply that these other channels are subordinated to the main channel... [o]r that the other channels are somehow of lesser quality than the main channel. This is in no way true. There is neither a hierarchy nor any other order of importance among the various channels of transmission, and transmission through one of those channels does not lead to service of lesser quality. It is up to the party who seeks to effect service to determine which of the conventions modes of transmission it wants to use (this choice is of course subject to the conditions imposed by the Convention itself). Against this background, the alternative channels should not be regarded as subsidiary to the main channel.[14]

94 I am conscious that r 80.03(2) provides that pt 2 does not apply if service of the document is effected without the application of any compulsion by an Australian diplomatic or consular agent as provided for by art 8 of the Hague Convention. There is no reference to art 10 in r 80.03(2) or in ord 80, or indeed in the Rules at all. However, I am not willing to conclude on this basis that it was intended that service pursuant to art 10 of the Hague Convention was to be excluded in Victoria. If that were the case, one would have expected that to have been made express. This is particularly so given that, as set out in the previous paragraph, service under art 10 is in no way a lesser or subordinate means of service. This view is consistent with the comments of Gordon J in Yellow Page Marketing at [19] referred to above.

95 As to r 80.02, that rule does not in my view lead to the conclusion that ord 80 is a mandatory code. This is particularly so in light of my construction of r 7.09 which is not inconsistent with the operation of ord 80 as a method of service recognised by the Rules. Further, and in this context, r 80.02 has work to do. By way of example, to the extent that the methods of service in art 5 of the Hague Convention incorporated in ord 80 might go beyond the methods of service in r 7.09, then I consider r 80.02 operates so that such a method would constitute valid service. I refer to my comments in [88] above.

96 By way of further example, pt 3 of ord 80 has a process for obtaining default judgment if no appearance is entered which differs from that contained in ord 21. To the extent of any inconsistency between pt 3 of ord 80 and ord 21, pt 3 prevails. For completeness, I consider that the default judgment procedure under rr 80.10 and 80.11 only applies if a request has been made to the Prothonotary under r 80.04.

97 As a result, I have concluded that ord 80 does not provide the only means of service of an originating process in a Convention country.

98 I note that my conclusion is generally consistent with the reasoning of Delany J in the recent decision in Jabiru Satellite Ltd v Societe Generale,[15] where his Honour concluded that ord 80 is not exclusive and does not restrict service that would otherwise be permitted in the country where service is effected under art 10.[16] However, his Honour did not have occasion to consider the operation or effect of r 7.09 relating to the method of service outside Australia.

99 As a result, I have concluded that r 7.09 is the primary rule specifying the modes of service of an originating process outside Australia (excluding New Zealand), namely personal service or service that is in accordance with the laws of the country in which service is effected.

100 Those methods of service apply generally and, in particular, under pt 2 of ord 7. They also apply to Convention countries. While ord 80 provides a mechanism for the efficient facilitation of requests for service and certification of service consistent with arts 3 to 6 of the Hague Convention should a plaintiff choose to adopt that course, in my view, it is not the only method by which service in a Convention country can be effected. Relevantly, r 7.09 allows personal service or service that is in accordance with the laws of the country in which service is effected. As a result, if service on a party in a Convention country in accordance with art 10(c) of the Hague Convention meets the requirements of r 7.09, that will be valid service for the purpose of the Rules.

101 These reasons do not address whether there would be valid service under r 7.09 if the State of destination opposed art 10(c). That issue does not arise in this application given that the United States of America has not objected to the method of service in art 10(c). In my view, that issue should await another occasion. However, in my preliminary view, if a Convention country has objected to the means of service of a foreign originating process specified in the relevant article of the Hague Convention, it seems unlikely that such service would therefore be 'in accordance with the law of the country in which service is effected' for the purposes of r 7.09.

102 For the reasons set out in section 6, I am satisfied that the Court has jurisdiction in respect of this proceeding.

103 While I consider that the relevant question in this application is whether service was effected in accordance with r 7.09, given the way in which this application was conducted, I will first consider whether the originating process was served in accordance with art 10(c) of the Hague Convention. I will then consider whether service was effected in accordance with r 7.09.

104 The operation of art 10(c) was not the subject of detailed argument before me. In its terms it provides that the Hague Convention does not interfere with the freedom of any person interested in judicial proceedings to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination. While art 10(c) identifies the requirements of the person who may effect service i.e. the channel of transmission, it does not in its terms prescribe the mode of transmission.

105 However, the Hague Convention Handbook notes that the following transmissions have been held to be valid service under art 10: transmission to an English independent process server for service on a defendant domiciled in the UK, and transmission to a private process service in Bermuda for service on a defendant in Bermuda.[17] In my view, these cases support the view that the mode of service may be one that is in accordance with the law of the State of destination.

106 These cases are consistent with the general view that there are no special requirements to be a 'competent person' for the purposes of art 10(c) in common law countries. In this regard, in United States v Islip,[18] the US Court of International Trade concluded that, in relation to the meaning of a 'competent person' under arts 10(b) and 10(c), under United States law there is no general requirement that an originating process be served by officials.

107 In light of the evidence set out in section 5, I am satisfied that service in accordance with art 10(c) has been complied with in this case given that:

(1) the plaintiff is a person interested in this judicial proceeding to effect service of the writ and statement of claim in this proceeding;

(2) the writ, statement of claim, Form 7AAA and a copy of ord 7 was served by a competent person of the State of destination, namely Mr Draeger; and

(3) service was effected, at the request of the defendant, on its solicitors in accordance with the law of Texas in which service was effected.

108 As to the relevant law of the State of destination, as noted in section 5 above, Mr Bryan deposed that in the United States, the requirement of the Due Process clause in the United States Constitution has been met by each State adopting its own rules, relevantly the Texas Rules of Civil Procedure.

109 As to the competency of Mr Draeger under the Texas Rules of Civil Procedure, I refer to the evidence of Mr Draeger set out in [47(4)] above that he was over the age of 18 years, had no interest in this proceeding and had proper authority to serve the documents in the State of Texas. I also refer to the evidence of Mr Bryan set out in [48] to [52] above that Mr Draeger was validly certified to serve a process in the State of Texas at the time when he served the documents relating to this proceeding.

110 As to the mode of service on the defendant, namely at the request of the defendant on its solicitors, I am satisfied that this service was also in accordance with the law of Texas. Once again I refer to the evidence of Mr Bryan set out in [48] to [52] above.

111 Further and more relevantly, by reason of the matters set out in [108] to [110] above, I am also satisfied that service on the defendant was effected in accordance with the law of the United States in which service was effected, relevantly the law of the State of Texas. In all these circumstances, I am satisfied that service has been effected in accordance with r 7.09 of the Rules.

112 In light of these conclusions, it is necessary to consider whether I should grant the plaintiff leave to proceed to enter default judgment. In my view, leave should be granted.

113 In deciding whether to grant leave, I have considered whether it is appropriate to have regard to the relevant matters in paragraph 1 of art 15 of the Hague Convention, which sets out the matters which a judge must be satisfied of before entering judgment against a person served under the Convention. This is because art 15 applies to default judgment where service has been effected by art 10.

114 In light of the way in which this application was conducted, I have determined that in the exercise of my discretion to grant leave to proceed to enter default judgment, it is appropriate to have regard to paragraph 1 of art 15. This is because the application for default judgment was premised on service having been effected in accordance with art 10(c) of the Hague Convention. In any event, the matters under paragraph 1 of art 15 are likely to have general relevance in any application for leave to proceed to enter default judgment.

115 As a result, I have had regard to the fact that:

(1) the relevant documents were served by a method authorised under the law of the State of Texas for service of documents in domestic actions upon persons who are within its territory; and

(2) the defendant was aware of the intention to serve the relevant documents by 25 January 2021 and requested them to be served on its solicitors. In these circumstances, I consider that service was effected in sufficient time to enable the defendant to defend the proceeding.

116 As a consequence, I have concluded that the plaintiff is entitled to default judgment against the defendant for failing to appear. I will enter judgment as at today's date. I will request the legal advisers for the plaintiff to prepare a form of order.

[1] See Christophe Bernasconi, Practical Handbook on the Operation of the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents on Civil or Commercial Matters (Wilson & Lafleur Ltée, 2006), [6] ('Hague Convention Handbook').

[2] See exhibit JKM6-C to the affidavit of Jonathan Kuan Min Chan affirmed 18 June 2021.

[3] Supreme Court (Service Out of Australia Amendment) Rules 2016 (SR No 109/2016).

[4] [2019] VSC 850, [183]-[210].

[5] It previously read 'Originating process which is to be served out of Australia need not be served personally as long as it is served in accordance with the law of the country in which service is effected'.

[6] Affidavit of Jonathan Kuan Min Chan affirmed 27 May 2021, Exhibit JKMC 5.

[7] [2010] FCA 1218 ('Yellow Page Marketing').

[8] See, for example, Adrian Zuckerman et al, Zuckerman on Australian Civil Procedure (LexisNexis Butterworths, 2018), [5.125]-[5.132] and Martin Davies et al, Nygh's conflict of laws in Australia (LexisNexis Butterworths, 10th ed, 2020), [3.27]-[3.29].

[9] Neil J Williams, LexisNexis Butterworths, Civil Procedure Victoria, vol 1 (at Service 323), [I 7.09.0] (citations omitted) ('Williams').

[11] Yellow Page Marketing (n 7) [18], [19]-[20].

[12] Or logically ord 8 r 3(5)(b)(ii) where leave was not sought.

[13] [2003] VSC 311, [14]. See also Carter Holt Harvey Woodproducts Australia Pty Ltd v David [2015] VSC 393, [14].

[14] Hague Convention Handbook (n 1) [183].

[15] Jabiru Satellite Ltd v Societe Generale [2021] VSC 544.

[17] Hague Convention Handbook (n 1) [234].