Waller v Freehills

1. Pursuant to rule 10.44 of the Federal Court Rules 2011 (Cth), the plaintiffs have leave to serve the following documents upon Mr Robert McIntyre in the United Kingdom: (a) the Summons for Examination issued to Mr Robert McIntyre under order 1(b) made on 7 June 2022; and (b) the Order for Production issued to Mr Robert McIntyre under order 2(b) made on 7 June 2022. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

GOODMAN J 1 The plaintiffs, who are the liquidators of Greatcell Solar Limited (in liquidation) (GSL) and Greatcell Solar Australia Pty Ltd (together, the Companies), seek an order pursuant to r 10.44 of the Federal Court Rules 2011 (Cth) that leave be given to serve, outside of Australia, an Examination Summons and an Order for Production upon Mr Robert McIntyre, a director of GSL. 2 Rule 10.44 of the Rules provides in so far is presently relevant: 10.44 Service of other documents (1) A party may apply to the Court for leave to serve a document filed in or issued by the Court, other than an originating application, on a person in a foreign country in accordance with a convention, the Hague Convention or the law of the foreign country. (2) An application under subrule (1) must be accompanied by an affidavit that includes the information mentioned in paragraphs 10.43(3)(a) to (c). … 3 Rule 10.43(3)(a) to (c) provides: (3) The application under subrule (2) must be accompanied by an affidavit stating: (a) the name of the foreign country where the person to be served is or is likely to be; and (b) the proposed method of service; and (c) 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 The Summons and the Order were issued by the Court on 8 June 2022, pursuant to Part 5.9 of the Corporations Act 2001 (Cth) and r 30.34 of the Rules. The Summons is not an originating application: see Waller v Freehills [2009] FCAFC 89; (2009) 177 FCR 507 at [79]-[90]. Similarly, the Order is not an originating application. The present application is for service on Mr McIntyre in the United Kingdom in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Thus, r 10.44(1) is satisfied. 5 The application is supported by an affidavit of Mr Peter Harkin, a partner of Colin Biggers & Paisley, Lawyers who act for the plaintiffs. Mr Harkin's affidavit includes the information mentioned in r 10.43(3)(a) to (c). Thus, r 10.44(2) is also satisfied. 6 The first of these matters is the name of the foreign country where Mr McIntyre is or is likely to be (r 10.43(3)(a)). Mr Harkin has identified that Mr McIntyre's last known address is an address in the United Kingdom (his country of birth) that Mr McIntyre provided to the Australian Securities and Investments Commission. 7 The second matter addressed by Mr Harkin is the proposed method of service (r 10.43(3)(b)). Mr Harkin's evidence is that he intends to engage a solicitor to effect personal service of the documents upon Mr McIntyre. 8 The third matter addressed by Mr Harkin is that the proposed method of service is permitted by one of the methods identified in r 10.43(3)(c). Mr Harkin's evidence is, and I am satisfied that, the Convention applies; and that personal service of the Summons and the Order in the United Kingdom can be effected on an individual by a solicitor. 9 Thus, the preconditions to the exercise of the Court's discretion to give leave have been established. 10 I am satisfied that leave should be granted for the following reasons. First, the preconditions have been satisfied. Secondly, the plaintiffs seek to conduct public examinations into the affairs of the Companies and Mr McIntyre was a director of GSL from 13 March 2015 and as such is likely to be a person able to produce documents and to provide information for the purposes of the examinations. Thirdly, service of the Summons and the Order in accordance with the Convention will not likely infringe upon the sovereignty of another country, for the reasons explained by White J in Clifton (Liquidator), in the matter of Solar Shop Australia Pty Ltd (in Liquidation) [2014] FCA 891 at [10]-[13]. Finally, no reasons against the grant of leave have been advanced. 11 I will make the order sought accordingly. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman.