Plaintiff v Defendants

B Requirements for service out of Australia

1. It is convenient to briefly address the requirements under the Rules for service out of Australia.
2. Order 7 of the Rules addresses service out of Australia. Pursuant to r 7.02(m), an originating process may be served out of Australia without leave where a plaintiff seeks to recognise or enforce any judgment. Pursuant to r 7.02(h), leave is also not required where the person is a necessary or proper party to the proceeding. For the reasons submitted by counsel, I am satisfied that the plaintiff has established for the purpose of this ex parte application, that it does not require leave to serve the second defendant out of the jurisdiction.
3. Rule 7.05 provides:

If a person is to be served out of Australia with an originating process, the person shall also be served with a notice in Form 7AAA informing the person of -

(a) the scope of the jurisdiction of the Court in respect of claims against persons who are served out of Australia; and

(b) the grounds alleged by the plaintiff to found jurisdiction; and

(c) the person's right to apply for an order setting aside the originating process or its service on the person or dismissing or staying the proceeding.

1. Rule 7.09 is the primary rule specifying modes of service of an originating process outside Australia.[3] It 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.

1. Australia and China are both signatories to the Convention. Accordingly, service of the second defendant in China may be effected through the channels of transmission specified by the Convention, as addressed in O 80 of the Rules. The Convention addresses service via the Central Authority in China and service by post is not permitted.[4]
2. Rule 6.11 addresses confirmation of informal service, and provides that:

Where for any reason a document has not been served in the manner required by these Rules, but the document has come to the notice of the person to be served, the document shall be taken to have been served on the day it came to the person's notice.

1. The Court's attention was not drawn to any authorities which applied r 6.11 to service out of Australia. For the following reasons, I accept the plaintiff's submission that r 6.11 applies to service out of Australia.
2. Rule 6.11 is within O 6 of the Rules, which is entitled 'Service'. This order addresses a range of matters associated with service, including when personal service is necessary, how service is to be effected personally and on particular defendants, and the parties' addresses for service. It also addresses alternative or additional modes of service, such as service by solicitor, service by filing, and service under contract.
3. Rule 6.10(1) addresses substituted service. Rule 6.10 uses similar terminology to r 6.11, providing that (emphasis added):

Where for any reason it is impracticable to serve a document in the manner required by these Rules, the Court may order that, instead of service, such steps be taken as the Court specifies for the purpose of bringing the document to the notice of the person to be served.

1. In Carter Holt Harvey v David,[5] the Court considered whether this provision applies to documents to be served out of Australia under r 7.09, despite the fact that it is located in O 6 and not in O 7, the order which addresses service out of Australia. Bell J concluded that r 6.10 did apply to service out of Australia:

Rule 6.10 operates according to its terms. It is not qualified by reference to facts and circumstances bringing the case within O 7. It contains no express territorial limitation confining its use to cases where the person to be served in the substituted manner is within Australia or Victoria. There is no basis for implying such a limitation.

The opening words of r 6.10 state this operative condition: 'Where for any reason it is impracticable to serve a document in the manner required by these Rules...' The expression 'for any reason' is broad and 'should be given a wide meaning'. What is required is that, for any reason, it is impracticable to serve the document in the manner required by the Rules. Where the court finds this condition to be satisfied and it is proper to do so in the exercise of the court's discretion, an order for substituted service may be made with respect to a person who is outside of Australia, as Kyrou J did in this court in Talacko v Talacko. Likewise, in Immerman v London Pie Co Pty Ltd Carr J held that the equivalent substituted service rule in the Federal Court of Australia was 'not to be confined to impracticability within the Commonwealth.' By parity of reasoning, r 6.10 applies where, as here, the whereabouts of the person to be served are unknown and he or she might be inside or outside of Australia.[6]

1. Applying the principles as enunciated in Carter Holt Harvey, I am satisfied that r 6.11 does apply. Like r 6.10, r 6.11 operates according to its terms. It does not have any express territorial limitation, and there is no basis for implying such a limitation.

C Should the Court dispense with the requirement to serve Form 7AAA?

1. The plaintiff seeks that the Court dispense with the requirement to serve the Form 7AAA notice on the basis that there is no prejudice to the second defendant arising from its non‑compliance.
2. The plaintiff's counsel directed the Court to the translation of the foreign judgment appended to Lin 1.[7] Counsel noted that paragraph 1 of the Chinese judgment granted relief as against the second defendant in this proceeding and paragraph 2 granted relief as against the first defendant in this proceeding. The plaintiff only seeks to enforce paragraph 2 in this proceeding, which is why the plaintiff submits there can be no prejudice arising to the second defendant from the lack of Form 7AAA notice.
3. The plaintiff submits that the second defendant was named as a party to this proceeding because the plaintiff was required to do so by common-law principles for the recognition of foreign judgments. Those principles require the parties in the enforcement proceeding to be identical to those in the foreign judgment.
4. The plaintiff's submission is that the Court should conclude that the second defendant had notice of this proceeding, and for good reason chose not to take any steps to defend it because there are no possible consequences for the second defendant if the relief sought by the plaintiff is granted.
5. The plaintiff submits that the following evidence is sufficient to prove the second defendant had notice of this proceeding:

(a) a letter dated 8 October 2025 addressed to registered office of the second defendant in the People's Republic of China, enclosing the Originating Motion, Lin 1 and an acknowledgment receipt requesting the signature of the recipient;[8]

(b) a copy of a photograph showing the delivery and the signature of an employee of the second defendant;[9]

(c) an acknowledgment of receipt signed by Ruichun Qi, director of the second defendant, which acknowledges that the documents were received on 15 October 2025;[10] and

(d) a screenshot from the Chinese National Enterprise Credit Information Publicity System which confirms that Ruichun Qi is a director of the second defendant.[11]

1. This evidence is also relied upon for the relief sought under r 6.11 to show that the documents to be served have come to the notice of the second defendant.
2. I accept that failure to serve a Form 7AAA pursuant to r 7.05 is an irregularity which the Court may cure if it were in the interests of justice to do so, pursuant to r 2.01 of the Rules.[12] Consideration will be had to whether the failure to serve the Form 7AAA notice was prejudicial to the person so served.[13] Where the person has elected to contest jurisdiction under r 7.04, it will be difficult to establish they have suffered prejudice by reason of a defective or irregular Form 7AAA notice.[14]
3. I do not accept that it is appropriate to dispense with the requirement to serve the Form 7AAA notice in this instance.
4. The requirement to serve Form 7AAA serves an important purpose. It gives the other party sufficient notice of the grounds on which the party claims to be entitled to serve the originating process out of Australia, and equips the person served with information sufficient to allow the person to decide whether to contest jurisdiction.[15]
5. The arguments made by the plaintiff as to why the second defendant has suffered no prejudice were hinged upon the second defendant having notice of the originating process. However, there is a significant gap in the plaintiff's evidence as to whether the second defendant has notice of the originating process, as opposed to notice to one of its directors.
6. The plaintiff relies upon an acknowledgment signed by a director of the second defendant and the operation of Article 88 of a Chinese law titled Civil Procedure Law of the People's Republic of China to evidence that the second defendant has notice of this proceeding. Ms Lin is qualified in China to practise law. She has exhibited a copy of Article 88 together with an English translation to Lin 1.[16]
7. The plaintiff submits, and I accept, that it is relevant to consider whether the second defendant has notice of this proceeding under Chinese law.
8. Article 88 provides that litigation documents shall be served directly on the recipient, and that where the recipient is a legal person or other organisation:

[S]ervice shall be made to the legal representative of the legal person, the principal person in charge of the organization, or the person designated by the legal person or organization to receive documents; where the recipient has a litigation representative, service may be made to such representative; where the recipient has designated a person to receive documents with the people's court, service shall be made to such designee.

The date of service shall be the date when the adult family member living with the recipient, the person designated to receive documents for a legal person or other organization, the litigation representative, or the designee signs the acknowledgement of service.[17]

1. The plaintiff has not adduced expert evidence as to the interpretation of Article 88.
2. As can be seen on its terms, Article 88 provides five persons associated with an organisation on whom service shall be made, namely, (i) the legal representative, (ii) the principal person in charge, (iii) the person delegated by the legal person or organisation to receive documents, (iv) the litigation representative, or (v) the person designated with the People's Court. Article 88 does not name a director as a person on whom service may be effected.
3. The plaintiff did not send the documents to the legal representative of the second defendant, and it is not the legal representative who has signed the acknowledgment of service.
4. The plaintiff relies upon the service upon 'the principal person in charge of the organization', and submits that a director of the company is the principal person in charge of the organisation. I do not accept this submission for two reasons.
5. First, there is no expert evidence before me as to the interpretation of the phrase 'principal person in charge of the organization' or the role of a director of a Chinese company which might assist with drawing a conclusion that a director is a principal person in charge of the organisation. A plain reading of the English translation of this phrase implies that the person should have an executive role in the company, rather than being, for example, an independent board member. That plain reading may or may not be valid under Chinese law.
6. Secondly, there is no factual evidence that the director who signed the acknowledgment is the principal person in charge of the organisation. There is no evidence as to Mr Qi's role, other than as director. The company extract of the second defendant identifies nine 'Main Personnel', and that Mr Qi is one of four directors. Mr Qi is not described in the company extract as Chairman, legal representative, manager or supervisor, as other named persons are.
7. I am therefore not satisfied on the evidence before me that the second defendant has had notice of the proceeding. I am not prepared to find that the acknowledgment of service signed by Mr Qi evidences that the second defendant has notice of this proceeding.
8. Therefore, I am not prepared to infer that the second defendant, armed with notice of this proceeding, has chosen not to challenge jurisdiction or otherwise defend this proceeding, such that the Court may be confident that no prejudice has arisen from the plaintiff's failure to serve the Form 7AAA notice. The second defendant has not sought to appear to object to the jurisdiction. On this basis, there is a factual distinction between the case at hand and that set out in Nature One Dairy (Hong Kong) Ltd v Orient Biotech SDN BHD.[18] Whilst there may be an inference open that the second defendant has not sought to contest jurisdiction because the proceeding does not affect it, that is not the only permissible inference. The second defendant was not served with the important information contained in the Form 7AAA notice. It was not equipped with the information sufficient to allow the person to decide whether to contest jurisdiction. On the evidence before me, I am not satisfied that no prejudice to the second defendant arises from the failure to serve the Form 7AAA notice.
9. Therefore, I am not prepared to find that the interests of justice favour dispensing with the requirements of r 7.05 and the service of Form 7AAA.

D Should an order be made deeming service under r 6.11?

1. Further and in any event, I am not satisfied that there has been informal service which may be confirmed under r 6.11.
2. Rule 6.11 requires that the document to be served has come to the notice of the person to be served.
3. It is accepted that the Form 7AAA notice has not come to the notice of the person to be served. In my view, absent dispensing with the requirement to serve Form 7AAA, confirmation of service out of Australia pursuant to r 6.11 requires service of the originating process and Form 7AAA notice as required by r 7.05. This is because service out of Australia requires both documents to be served, so that the recipient is fully informed of their rights to oppose the extraterritorial jurisdiction of the Court. Rule 7.05 requires that the Form 7AAA notice 'shall also be served', and the authorities are clear as to the importance of the notice.
4. Further and in any event, for the reasons that I have already explained, I am not satisfied on the evidence before me that the originating motion has come to the notice of the second defendant, as opposed to a director of the second defendant.

[1] Lin 1, [28]; Exhibit XL-1 to Lin 1, 66 (Translation of Chinese Judgment).

[3] Rio Tinto Shared Services Pty Ltd v English Datasystems LLC [2021] VSC 660, [4(1)], [84].

[4] 'China - Central Authority & practical information', Hague Conference on Private International Law (Web Page) . See Convention, art 10.

[5] [2015] VSC 393.

[6] Carter Holt Harvey, [9]-[10] (citations omitted).

[7] Exhibit XL-1 to Lin 1, 61-67 (Translation of Chinese Judgment).

[8] Exhibit XL-2 to Lin 2, 5 (Letter dated 8 October 2025).

[9] Exhibit XL-2 to Lin 2, 7-8 (Photograph of Package Delivery).

[10] Exhibit XL-2 to Lin 2, 9 (Director's Acknowledgment of Receipt).

[11] Exhibit XL-2 to Lin 2, 10-12 (Company Record).

[12] Nature One Dairy (Hong Kong) Ltd v Orient Biotech SDN BHD [2025] VSC 649, [29]-[31]; Schib Packaging Srl v Emrich Industries Pty Ltd [2005] VSCA 236; 12 VR 268, [20]-[24] regarding the previous requirement to endorse the originating process.

[14] Nature One, [29]; Brighton Automotive Holdings Pty Ltd v Honda Australia Pty Ltd [2021] VSC 757; 65 VR 146, [64].

[15] Nature One, [25]; Brighton Automotive, [64].

[16] Exhibit XL-1 to Lin 1, 15 (Translation of Article 88).

[17] Exhibit XL-1 to Lin 1, 15 (Translation of Article 88).

[18] [2025] VSC 649.