Plaintiff v Defendants

r 7.06 of the SCR. I have also concluded that leave should not be given in the particular circumstances of this case.

2 Order 80 gives effect to the ratification by Australia of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965 ("the Convention").[1] This Convention contains the protocol for transmission of a "judicial" or "extra-judicial" document from one Convention country to another Convention country for the purpose of serving the document in the other Convention country. The Convention does not address or comprise substantive rules relating to the actual service of process within the foreign country.

3 The protocol involves a request for service in the Model Form, the content of which is picked up in Order 80. Order 80 applies to service in a Convention country of a "local judicial document". That expression is defined in Rule 80.1 to mean:

A judicial document that relates to civil proceedings in the Court.

Rule 80.04(1) provides that a person seeking to have a local judicial document served on a person in a Convention country outside Australia must make application in the form prescribed by r 80.04 to the Prothonotary. If the Prothonotary is satisfied that the application and its accompanying documents comply with the requirements of

r 80.04, the Prothonotary must make a request to the foreign Convention country for the service of the local judicial document in that country. If the request is made, the relevant authority of the foreign Convention country will execute the request for service or cause it to be executed either by a method prescribed by the internal law of that country for the service of documents,[2] or by a particular method requested by the applicant, unless that method is incompatible with the law of the foreign Convention country,[3] or by simple delivery to an addressee who accepts it voluntarily.[4]

4 Order 80 simply prescribes the process which must be undertaken in order for a request for service to be made to the relevant authority of the foreign Convention country. Order 80 does not give authority to the Prothonotary to allow service of a local judicial document outside of Australia. Where Order 80 applies, the Convention may be relied for the purposes of transmitting a request for service of a local judicial document abroad. But the Convention does not by its own force authorise service of documents abroad. The Convention's purpose is to facilitate the transmission of a letter of request where a document is to be served abroad and to facilitate the execution of service in the foreign country.

5 Contrary to the Plaintiff's submission, Order 80 does not abrogate the need for a party to obtain the leave of the Court pursuant to Rule 7.06(c) of the SCR to allow service out of Australia. Rule 7.06(c) provides that the Court, by order, may allow service out of Australia of, relevantly, "any summons, order or notice in a proceeding." A subpoena is an order: Rule 42.01. As a subpoena is an order, it is within the terms of r. 7.06(c). The Court thus has the power under Rule 7.06(c) to give leave to a person to serve a subpoena outside Australia.

6 It is a separate question as to whether that power should be exercised. The cases show a general reluctance by the Courts to exercise the power where the document to be served is a subpoena to give evidence or to produce documents. In Arhill Pty Ltd & Ors v General Terminal Co Pty Ltd & Ors[5] Rodgers CJ Comm D explained that the power will seldom be exercised as the making of an order that requires a person who is resident in another country to attend before the court would infringe international law as to comity.[6] In Stemcor (A/sia) Pty Ltd v Oceanwave Line SA[7] Allsop J advanced another reason:

... Australian Courts cannot enforce compliance on pain of punishment. In the absence of enforcement procedures the order is an empty threat, or the equivalent of a mere request couched in imperative terms. The court should not be seen to be engaged in such conduct.[8]

Other authorities have followed and applied these cases[9] and the principles are apposite to the present case. The Court should be reluctant to give leave to allow the service of a subpoena that would require a person to attend court in Australia with sanctions applying for non-attendance, in circumstances where the Court is unable to enforce compliance.

7 The Plaintiff sought to distinguish the present case from Sweeney v Howard[10] where Windeyer J observed:

As I understand it, the position has always been that if you have a recalcitrant witness in a foreign country, to get the evidence of that witness, it is necessary to take it on commission, or on some equivalent basis. Whilst that is not the determining factor, it is at least something to be taken into account.[11]

The Plaintiff relied on correspondence with the relevant person on whom the subpoena is to be served, a Mr Yakim, who was asked whether he would be willing to travel to Melbourne to give evidence in Court if a subpoena to attend and give evidence was issued and served on him in Israel.[12] Mr Yakim's response, through his solicitors, was that he had been requested many times throughout his professional career to attend various Courts worldwide, and that he had always complied with those Courts' orders and requests. Further, he would respect any lawful Court order that would be addressed to him and if a subpoena was served to attend and give evidence in this case, he would fully comply with the Court's orders. It was submitted for the Plaintiff that the Court should, in the circumstances, take into consideration the willingness of Mr Yakin to attend if he is subpoenaed.

8 The defendants submitted on the other hand that this indicated that Mr Yakim would not attend to give evidence unless he was compelled to do so, and that the Court should therefore not grant leave on the basis of Mr Yakim's apparent willingness to attend, if compelled. It was further submitted that the appropriate course to take is to obtain evidence from Mr Yakim through the process provided for in the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters.[13]

9 The indication from Mr Yakim that he will attend if served with a subpoena is not a persuasive reason for granting leave, in my view. If served with a subpoena Mr Yakin will be compelled to attend to give evidence under threat of sanctions for non-attendance. The compulsion is the very reason that Australian Courts generally will not allow the service of such a subpoena because Australian Courts cannot enforce compliance.

10 For the sake of completeness, I should deal with the question of whether the subpoena is a "local judicial document" for the purposes of Order 80. Most of the argument was directed to that question, not to the question of whether leave should be granted, as the predicate on which the plaintiff had applied for a request for service under Order 80 was that the leave of the Court was not required.

11 It is reasonably evident in my view that a subpoena is a "local judicial document" for the purposes of Order 80 and for the purposes of the Convention. The expression "judicial document" is not defined in the Convention but a handbook on the Convention published in 2006 by the Permanent Bureau of the Hague Conference on Private International Law ("the Handbook") assists to provide guidance on what that term is intended to mean in the Convention.[14] Paragraph 66 of the Handbook provides that:

Judicial documents for the purposes of the Convention are instruments of contentious or non-contentious jurisdiction, or instruments of enforcement. Judicial documents include writs of summons, the defendant's reply, decisions and judgments delivered by a member of a judicial authority, as well as summons for witnesses and expert witnesses abroad, and requests for discovery of evidence sent to the parties even if these are orders delivered as part of evidentiary proceedings.

It is apparent that the phrase "judicial documents" is intended to include subpoenas for witnesses to give evidence.

12 I have already referred to the definition of "local judicial document" in Order 80. This is to be read in conjunction with "subpoena" in Order 42.01. As a subpoena to give evidence is an order of the Court, a "local judicial document" for the purposes of Order 80 will include a subpoena. In this regard, Order 80 is harmonious with the Convention.[15]

13 The application made under Order 80 is not competent because it lacked the leave of the Court and leave is refused.

[1] Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 15 November 1965, (entered into force 1 November 2010).

[2] Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 15 November 1965, (entered into force 1 November 2010), Article 5(a).

[5] (1990) 23 NSWLR 545.

[6] See also Sweeney v Howard [2007] NSWSC 262; Stemcor (A/sia) Pty Ltd v Oceanwave Line SA [2004] FCA 391; Peng Yuan Gao v YU Jing Zhu [2002] VSC 64.

[7] [2004] FCA 391.

1. [9] See for example Peng Yuan Gao v YU Jing Zhu [2002] VSC 64, Sweeney v Howard [2007] NSWSC 262 and Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International NV [2007] FCAFC 43.

[10] [2007] NSWSC 262.

[12] Israel is a party to the Convention.

[13] Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, 18 March 1970 (entered into force 22 December 1992).

[14] Practical Handbook on the Operation of the Hague Convention 15 November 1965 on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters, 1965; re Rocklea Spinning Mills Pty Ltd v Anti-dumping Authority [1995] FCA 1188; 1995 56 FCR 406, 421; Thiel v Federal Commissioner of Taxation [1990] HCA 37; (1990) 94 ALR 647, Pearce DC, Statutory Interpretation in Australia (7th Edition, 2011) at 1.14.

[15] See also Gao v Zhu [2002] VSC 64.