Stemcor (Asia) Pty Ltd v Ocean Wave Line SA

REASONS FOR JUDGMENT 1 The Court has previously, on 9 July 2014, issued examination summonses under s 596B of the Corporations Act 2001 (Cth), requiring a number of individuals and entities, via their proper officers, to attend for examination about the examinable affairs of Solar Shop Australia Proprietary Limited (in Liquidation) (Solar Shop). 2 In addition, the Court has ordered, pursuant to s 596D of the Corporations Act, the respondents to the summons to produce books and records in their possession relating to the examinable affairs of Solar Shop. Three of the entities in respect of which a summons has been issued are companies whose registered offices are overseas. One of these three, Solar Frontier KK, is a Japanese company but it has nominated an address for service within Australia, and nothing more need be said presently about the summons directed to it. The other two companies, SMA Solar Technology AG (SMA Solar) and Wuxi Suntech Power Co Ltd (Wuxi Suntech), are German and Chinese companies respectively. 3 The liquidators of Solar Shop have applied, by interlocutory application, for leave to serve the order of this Court of 9 July 2014, together with amending or supplemental orders made on 22 July 2014 and 6 August 2014 respectively on SMA Solar and Wuxi Suntech, and to do so in accordance with the Convention on the Service Abroad of Judicial and Extra-judicial Documents in Civil or Commercial Matters, opened for signature 15 November 1965, 658 UNTS 163 (entered into force 1 November 2010) (Hague Convention). In the case of Wuxi Suntech, leave is sought to serve only the orders of 9 July 2014 and 6 August 2014. 4 The application is made pursuant to rr 10.42, 10.43 and 10.44 of the Federal Court Rules 2011. Rule 10.42 provides: Subject to rule 10.43, an originating application or an application under Part 7 of the Rules, may be served in a foreign country if the proceeding to which it relates answers at least one of the descriptions set out in the table contained in rule 10.42. 5 Rule 10.43 also relates to the service of an originating application. Rule 10.44 relates to the service of a document "filed in or issued by" the Court other than an originating application. It permits a party to apply to the Court for leave to serve such a document in accordance with, amongst other things, the Hague Convention. 6 In my opinion, it is r 10.44 which is applicable presently, as the orders which are the subject of the application are not originating applications or applications made under Part 7 of the Rules. As noted, r 10.44 applies to documents other than originating applications and includes documents issued by Court. The documents containing the formal orders of the Court which the applicants wish to serve on SMA Solar and Wuxi Suntech answer that description. 7 Rule 10.44(2) requires that an application for leave pursuant to r 10.44 be accompanied by an affidavit which includes the information mentioned in rr 10.43(3)(a)-(c). 8 Subrule (3) provides: 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. 9 For the purposes of the present application, the joint liquidators, Mr Clifton and Mr Hall rely on the affidavit of Mr Clifton affirmed on 6 August 2014. I am satisfied that the content of Mr Clifton's affidavit meets the requirements of rr 10.43(3)(a)-(c). 10 In some cases in the past, this Court has refused a grant of leave to issue or serve a subpoena in another country on the basis that an order requiring a foreign national to do something in Australia on pain of punishment, in proceedings to which that foreign national has not submitted, is an infringement of the sovereignty of the other country. Australian Courts do not readily allow such an infringement: Stemcor (Asia) Pty Ltd v Ocean Wave Line SA [2004] FCA 391. These cases are an application of the principle of international comity pursuant to which courts exercise caution about asserting judicial power beyond the territorial limits of their own jurisdiction in a way which interferes with the sovereignty of another State. 11 In my opinion the principle of international comity should not preclude the grant of leave in the present case. 12 The present application is for leave to serve the orders of this Court in accordance with the Hague Convention to which Australia subscribed with effect from 1 November 2010. Both Germany and China have also acceded to the Hague Convention. They can, therefore, be taken to have accepted the course of action contemplated by the present application, namely, the issue of a letter of request by the Registrar of this Court under r 10.64 to the Central Authority in their countries. Their sovereignty will not be infringed by the forwarding of the request to the Central Authority and, if that Central Authority considers that some infringement of their country's sovereignty is involved, it may refuse to effect that service. 13 I note that a similar approach was adopted in relation to examination summons by Farrell J in Donnelly, in the matter of Advance Finance Proprietary Limited (in Liquidation) [2013] FCA 514, to which counsel for the applicants drew attention. 14 As I noted previously, this Court has earlier issued the examination summons in respect of SMA Solar and Wuxi Suntech as well as in respect of numerous other persons and entities. This is not the occasion to review the correctness of the Court's previous decision to issue those summons. If any such review is necessary, it would be better carried out on an application by SMA Solar or Wuxi Suntech pursuant to s 597(a) of the Corporations Act or pursuant to r 39.05 of the Federal Court Rules 2011. 15 Accordingly, I grant the leave sought by the applicants and will make orders in the terms proposed. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.