VoR Environmental Australia Pty Limited v Taset Inc.

THE COURT:

1. GRANTS leave to the applicant, pursuant to FCR 10.42, to serve the Originating Application dated 12 April 2017 on the respondent by causing a copy of a "Letter of Request" under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 15 November 1965 to be completed and sent to the Director of International Affairs, National Court Administration, Supreme Court of Korea by courier, attaching two copies of the Originating Application, the Concise Statement and the applicant's Genuine Steps Statement (as well as certified Korean translations of each of these documents in accordance with Article 3 of the Treaty on Judicial Assistance in Civil and Commercial Matters Between the Republic of Korea and Australia of 17 September 1999).
2. ORDERS that the matter be listed for a further case management hearing at 9.30am on 21 July 2017.
3. GRANTS the applicant liberty to approach the Associate to Lee J to vary the date of the further case management hearing in the event that there is delay in effecting service in accordance with Order 1. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LEE J: 1 This is the first return date of an originating application filed on 19 April 2017. The proceedings involve allegations by the applicant that the respondent supplied defective equipment to a desalination plant servicing a remote mine site in Western Australia. The respondent, Taset Inc., is a corporation which has a registered address in Seoul in the Republic of Korea. 2 In those circumstances, on 15 May 2017, the applicant filed an interlocutory application seeking leave pursuant to FCR 10.42 to serve the originating process outside Australia. 3 The originating application is supported by a concise statement prepared in accordance with the Court's Practice Notes CPN-1 and C&C-1. 4 The concise statement (and the helpful submissions of Mr Conde, who appears for the applicant) conveniently set out the important facts giving rise to the claim. Put generally, the applicant and the respondent are manufacturers and suppliers of water and waste-water related infrastructure. The applicant alleges that, in 2015, it contracted with the respondent for it to design, document, supply, deliver and otherwise procure various significant items of equipment. After delivery of the equipment to Fremantle, the respondent assisted in providing installation at a remote mining site located in a coastal area of Western Australia. The installation, it is alleged, involved the respondent making various recommendations as to the installation of the equipment. 5 Subsequently, a dispute arose between the parties concerning alleged problems arising from the equipment including an alleged improper preparation of paint coatings, a lack of bracing support and related matters. There were various subsequent dealings between the parties including a proposal made by the respondent that the equipment would be rectified by a particular time. Ultimately, the applicant took the view that it was forced to rectify the equipment itself and alleges that it suffered loss and damage by reason of taking such rectification steps and incurred other related costs. 6 The relief sought by the applicant includes statutory compensation pursuant to s 236 of the Australian Consumer Law (ACL) or, alternatively, damages at common law. 7 I have set out above the allegations in summary because one of the three matters of which the Court must be satisfied in granting leave under FCR 10.43(4) is that the applicant has a prima facie case. Plainly, the concise statement sets out the basis of a claim which, if accepted, would sound in statutory compensation or damages. Indeed, it is a relatively straightforward commercial dispute relating to the defectiveness or otherwise of equipment supplied by the respondent. The requirement to demonstrate a prima facie case in the context of service outside Australia is not particularly onerous. Ultimately, the question for the Court is whether, on the material before the Court, including the unproven allegations in a statement of claim or cognate document, allegations of material facts are made which, if accepted, would support the relief claimed: see Australian Competition and Consumer Commission v Yellow Page Marketing BV [2010] FCA 1218 at [25] per Gordon J. 8 In the circumstances, I am satisfied that the applicant has demonstrated a prima facie case. 9 The other two matters of which I must be satisfied prior to leave being granted is that: first, the Court has jurisdiction in relation to the proceeding; and secondly, that the proceeding is of a kind mentioned in FCR 10.42. 10 It is plain that both these additional requirements are met in the circumstances of this case. 11 First, the allegations in this proceeding involve communications into Australia, namely the "First Representations" and "Installation Representations" pleaded at paragraphs 5 and 11 of the applicant's concise statement. At least some of these representations were received and relied upon by the applicant in Australia. Put simply, there is a justiciable controversy between the parties which involves one of the actors to that controversy, namely the applicant, relying on a law of the Commonwealth (the ACL) to seek relief. The matter is indubitably within Federal jurisdiction and is amenable to the exercise of judicial power by this Court to quell the controversy: see s 39B(1A)(c) of the Judiciary Act 1903 (Cth). 12 Secondly, as to the requirement that the proceeding is of a kind mentioned in FCR 10.42, the applicant brings a claim "based on a contravention of an Act that is committed in Australia" for the purposes of item 12 in the table in FCR 10.42 and is also a claim "based on a breach of contract in Australia" for the purposes of item 2 of the table. 13 Accordingly, the requirements of FCR 10.43(4) have been satisfied and, subject to being satisfied of the mode of service, leave to serve the originating application on the respondent outside Australia should be granted. 14 Accordingly, I turn to the requirements for service on a respondent in the Republic of Korea and how the applicant proposes to effect service. 15 As I have noted above, the applicant seeks leave to serve the originating process on the respondent at its registered address in Seoul. It proposes to do so in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 15 November 1965 (Hague Service Convention) and the Treaty on Judicial Assistance in Civil and Commercial Matters between the Republic of Korea and Australia on 17 September 1999 (Judicial Assistance Treaty). 16 The Overseas Service and Evidence Practice Note (GPN-OSE dated 25 October 2016) provides, among other things, that an affidavit in support of an application for leave to serve outside the jurisdiction should include information obtained from Attorney-General's Department in relation to the appropriate method of transmitting documents for service in the relevant country. This information may be obtained from the Private International Law section of the website of the Attorney-General's Department: para 2.4 of GPN-OSE. 17 The affidavit of Mr Light affirmed on 15 May 2017, which was read by Mr Conde on the application, establishes that Mr Light accessed the Private International Law section of the website of the Attorney-General's Department, which identified the Republic of Korea and Australia as signatories to the Hague Service Convention. It follows that service on the respondent in the Republic of Korea must be effected in accordance with the Hague Service Convention and, for reasons explained in the affidavit of Mr Light, service must be performed in accordance with the method described in Article 5 of the Hague Service Convention. 18 Article 5 of the Hague Service Convention 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 - (a) by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, or (b) 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." 19 The evidence establishes that the Hague Service Convention also provides that the relevant Central Authority in the Republic of Korea is the Director of International Affairs, National Court Administration, Supreme Court of Korea (Central Authority). 20 On 20 April 2017, Mr Light contacted the Central Authority and received a response in which a court official of international affairs at the Central Authority referred him to Articles 8 and 9 of the Judicial Assistance Treaty. 21 In summary, Articles 8 and 9 of the Judicial Assistance Treaty set out that the way in which a Letter of Request for services is to be sent and the particulars of such a letter. The proposed Letter of Request in this case is based on a template from the Attorney-General's Department and Mr Light deposes to the fact that, if leave is granted, he will cause a copy of the Letter of Request to be completed and sent to the Central Authority by courier, attaching two copies of the originating application, the concise statement and the applicant's genuine steps statement (as well as certified Korean translations of each document in accordance with Article 3 of the Judicial Assistance Treaty). 22 In all the circumstances, I propose to grant the relief sought by the applicant and make orders for the service of the originating application and related documents in accordance with the method proposed by Mr Light. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.