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[2010] FCA 1062
procedural. The Court considered that the jurisdiction, proceeding-category and prima facie case requirements were met for at least some relief, and stated that it was persuaded to allow the further...
2 cited instruments linked from this judgment.
The Court reconsidered West's request to amend his claims and serve the case on a company in England. A rule change meant he only had to show a prima facie case for some of the relief sought, and the Court found that threshold met for at least two claims. The Court also considered that it had jurisdiction. But the evidence did not clearly set out how service would be carried out in England or expressly establish that the method was permitted there. The judge therefore indicated that further evidence was needed before the requested orders would be made.
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2,172 words · generated 28/09/2026
In West v TWG Services Limited [2010] FCA 1062, Gray J considered a renewed interlocutory application by Colin West. West sought leave to amend his application and statement of claim again, and to serve the further amended process on TWG Services Limited in England. The respondent did not appear.
The application followed an earlier unsuccessful attempt. On 18 September 2009, Gray J had dismissed West's application for leave to serve outside Australia. The earlier reasons, in West v TWG Services Limited [2009] FCA 1052, concluded that West had not shown a prima facie case for most of the seven causes of action then relied on. Because leave was discretionary, the judge had declined to exercise that discretion in West's favour ([1]).
West renewed his application by notice of motion filed on 30 August 2010, alongside a request to amend his pleadings further ([2]). Further leave to amend was needed because the one amendment allowed without leave under O 13 r 3(1) had already been used ([4]).
The proposed case had been reduced to four claims: misleading and deceptive conduct under s 52 of the Trade Practices Act 1974 (Cth); accrued annual leave, pleaded alternatively as breach of contract or an entitlement under the Workplace Relations Act 1996 (Cth); failure to provide reasonable notice when ending West's assignment to work in Australia; and an alleged contractual entitlement called the “enhanced redundancy package” ([5]).
Gray J considered the Court had jurisdiction. The statutory causes of action provided statutory jurisdiction, while the contractual claims fell within accrued jurisdiction. The statutory claims also placed the proceeding within one or more categories in O 8 r 2 of the Federal Court Rules ([6]).
The Court did not make the requested overseas service orders immediately. It found a prima facie case for some of the claimed relief and indicated that it was prepared to grant the requested relief in principle. But the evidence did not adequately specify the proposed service method in England. Gray J therefore indicated that further affidavit evidence was needed before making the orders ([7]-[10]).
Two changes mattered to the renewed application: a change in the applicable prima facie case wording, and additional affidavit evidence. Gray J explained that the requirement in O 8 r 3(2)(c) had changed. It no longer required a prima facie case for the relief claimed as a whole, but instead required a prima facie case “for all or any of the relief claimed” ([3]). This altered the significance of the earlier finding that most of West's claims did not have a prima facie case.
The Court identified a prima facie case for the Workplace Relations Act claim, referring to the earlier reasons, and for the enhanced redundancy package claim, having regard to the affidavit evidence then before it ([7]). It did not decide whether a prima facie case existed for the other claims. Gray J expressly said that it was unnecessary to express a view about them and preferred not to do so ([7]). That restraint is important: the judgment is not a determination that all four causes of action were sufficiently supported.
The Court also addressed whether the proceeding came within O 8 r 2. It identified items 11, 12 and 13 in that rule as relevant categories, concerning specified statutory breaches and proceedings about the construction, effect or enforcement of legislation. Because the two statutory causes of action fitted one or more of those categories, the Court considered it unnecessary to investigate where any contract had been made or what law governed it ([6]). The judgment therefore does not resolve those contractual choice-of-law questions.
The service-evidence issue prevented immediate orders. O 8 r 3 required evidence identifying the foreign country, the proposed method of service, and whether that method was permitted under any relevant convention or, if there was no convention, the foreign country's law ([9]). The evidence indicated that there was no relevant service convention, treaty or other agreement between Australia and the United Kingdom, and that service by private agent was permitted according to information from the Australian Attorney-General's Department website ([10]).
However, the affidavit's statement that service would be effected “validly in accordance with the laws of England and Wales” at TWG's registered office was not enough for Gray J. The judge considered that it did not adequately identify the proposed method or state that the method itself was permitted by English law ([10]). The point was evidentiary specificity: a general assurance of lawful service did not satisfy the requirement as Gray J applied it in this application.
The Court also noted that evidence about TWG's registered office was more than two years old. Gray J said a further search might be necessary to establish whether the registered office remained at the same location ([9]). That observation was not the stated reason for deferring the orders; the reason given was the lack of sufficiently specific evidence about the method of service ([10]).
The judgment describes a change to O 8 r 3(2)(c), but does not set out the amendment's legislative history or its date of commencement. The Court explains the operative contrast: previously, it had assessed whether West had a prima facie case for the relief he claimed; under the amended wording, the requirement was a prima facie case “for all or any of the relief claimed” ([1], [3]).
In the earlier application, Gray J had treated the absence of a prima facie case for most of the seven claims as a reason not to exercise the discretion to allow overseas service ([1]). On the renewed application, the narrower claim set and changed wording meant that a prima facie case for some relief could meet the threshold, even though the Court did not assess every remaining claim ([5], [7]-[8]).
The judgment should not be read as establishing that a prima facie case for one claim automatically secures leave to serve overseas. Gray J continued to describe the order as discretionary and considered other requirements, particularly whether the proceeding fell within O 8 r 2 and whether the evidence met O 8 r 3 ([1], [6], [9]-[10]). The decision also illustrates that satisfying the prima facie case threshold does not remove the separate requirement to provide adequate evidence of the proposed method of foreign service.
The judgment does not describe later amendments to the Federal Court Rules or state what the current rules require. Its account is limited to the rule wording and procedural requirements applicable to the application before the Court in 2010.
At [3], Gray J stated: “It is only that the person seeking leave have a prima facie case for all or any of the relief claimed.” In plain English, the applicant did not have to establish an arguable case for every remedy or claim in order to satisfy that particular threshold. The Court applied this by identifying two claims for which it considered a prima facie case had been shown, while declining to assess the others ([7]).
At [6], the Court said that the statutory causes of action fitted within “one or more” of the listed categories in O 8 r 2. In practical terms, the statutory claims supplied the necessary connection to the rule's categories, so Gray J did not need to determine the place of contracting or governing law for the contractual claims on this application.
At [7], Gray J said: “I can content myself with saying that the applicant has a prima facie case for some of the relief claimed.” This is a deliberately limited finding. It supports the conclusion that the amended threshold was met, but it does not establish that the remaining causes of action had a prima facie case.
At [10], Gray J explained that saying service would occur validly under English law was not sufficiently detailed evidence of “the proposed method of service”. The plain-English point is that the affidavit needed to identify how service was to be carried out, not merely assert that it would be lawful. The Court also required the evidence to address whether that particular method was permitted by English law.
Finally, Gray J stated that if the missing evidence could be provided by a further affidavit from the applicant's solicitor, the Court was “content to make orders of the kind sought” ([10]). This records the Court's stated position, but the reasons do not record that the requested final orders were then made. The matter was stood over pending the further evidence.
The decision is most directly relevant to an interlocutory application for leave to serve originating process outside Australia under the version of O 8 of the Federal Court Rules considered by Gray J. Its reasoning is engaged where a proceeding includes statutory claims that may place it within a listed category in O 8 r 2, alongside contractual claims ([5]-[6]).
It is also relevant where the rule requires a prima facie case for “all or any” of the relief claimed. The judgment shows the Court assessing whether at least some relief had a prima facie basis, while expressly leaving the other causes of action undecided ([3], [7]). The prior application in the same proceeding makes the point particularly clear: a change in the rule's wording was material to the renewed application after the earlier refusal ([1], [3], [8]).
The service-evidence aspect is relevant to applications where service is proposed in a foreign country and the evidence must identify the method and its legal basis. In this case, information about private-agent service was referred to, but the affidavit did not sufficiently state the proposed method in the judge's view ([10]). The judgment does not establish requirements for every country, every service convention, or every later version of the rules.
The decision also addresses the procedural situation in which a party has already used the amendment allowed without leave and seeks to amend pleadings again. Gray J noted that O 13 r 3(1) required leave for the further amendments ([4]). The reasons do not provide a general test for granting amendment leave beyond the Court's statement that it was persuaded to allow the amendments in the circumstances of this application ([8]).
The supplied judgment identifies West v TWG Services Limited [2009] FCA 1052 as an earlier decision in the same proceeding and refers back to its reasons on the earlier service application and the Workplace Relations Act claim ([1], [6]-[7]). It does not identify any subsequent decision or later court treatment of the 2010 judgment.
Accordingly, the material provided does not support a claim that later courts have followed, applied, distinguished, or criticised this decision. Nor does it permit a reliable account of the present status of the relevant procedural rules. The judgment itself can be described as drawing on the earlier 2009 reasons, while applying the amended O 8 r 3(2)(c) formulation to the renewed application ([1], [3], [7]).
For research purposes, the key limitation is that this is a short interlocutory decision, with ten numbered paragraphs and no respondent appearing. Its stated conclusions concern the application before Gray J and the evidence then filed. A broader account of subsequent treatment would require sources beyond this judgment.
The immediate procedural question left unresolved in the reasons was whether the applicant would provide further affidavit evidence that identified the proposed service method and stated that it was permitted by English law. Gray J indicated that such evidence could allow the requested orders to be made, but the reasons do not reproduce any later affidavit or order ([10]).
The Court also did not determine whether West had a prima facie case for the relief relating to misleading and deceptive conduct or reasonable notice. Gray J said it was unnecessary to express a view on the other causes of action ([7]). The judgment therefore cannot be relied on as a ruling about the merits of those claims.
The reasons leave the contractual governing-law and place-of-contracting issues open. The Court considered those questions unnecessary because the statutory claims fitted within O 8 r 2 categories ([6]). It did not make findings about which law governed the contractual claims.
The evidence about TWG's registered office was more than two years old. Gray J observed that it might be necessary to conduct a further search to establish whether the office remained at the same place ([9]). The supplied reasons do not say whether that search occurred or whether the address was confirmed.
Finally, the judgment does not explain how later courts construed the amended prima facie case wording, whether the relevant rules were subsequently changed, or what service requirements apply under rules in force today. Those matters cannot be answered from this judgment alone.
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REASONS FOR JUDGMENT 1 On 18 September 2009, I made orders in this proceeding, dismissing an application for leave to serve the originating process on the respondent outside Australia. I also ordered that there be no order as to the applicant's costs of that application and reserved liberty to the applicant to apply in the proceeding. On that occasion, I published reasons for judgment. See West v TWG Services Limited [2009] FCA 1052. In the course of those reasons for judgment, I expressed the conclusion that, with respect to most of the causes of action on which the applicant then relied, he had failed to satisfy the requirement of O 8 r 3(2)(c) of the Federal Court Rules (Cth) ("the Federal Court Rules") that he have a prima facie case for the relief he claimed in the proceeding. My conclusion was that, with respect to most of the seven causes of action then relied on, there was not a prima facie case. As an order granting leave to serve originating process outside Australia was a discretionary matter, I took the view that I ought not exercise my discretion in favour of the applicant, when he was unable to make out a prima facie case with respect to the preponderance of his claims. 2 By notice of motion filed on 30 August 2010, the applicant has exercised his liberty to apply again. He has done so in conjunction with an application further to amend his amended application and his amended statement of claim. 3 In the meantime, there has been an amendment to O 8 r 3(2)(c) of the Federal Court Rules. The requirement of those rules is no longer that the person seeking leave have a prima facie case for the relief claimed. It is only that the person seeking leave have a prima facie case for all or any of the relief claimed. 4 It is necessary for the applicant to apply for leave to amend his application and his statement of claim again, because he has already made amendments to those documents on one occasion. Order 13 r 3(1) of the Federal Court Rules has the effect of permitting a party to amend once without leave. That opportunity has been used up. 5 The effect of the amendment sought by the applicant is to reduce the number of causes of action on which he relies to four. His claim involves: a claim of misleading and deceptive conduct, in contravention of s 52 of the Trade Practices Act 1974 (Cth); a claim for failure to pay accrued annual leave on termination of employment, which is based alternatively on an allegation of breach of contract or on a claim for entitlements pursuant to the Workplace Relations Act 1996 (Cth) ("the Workplace Relations Act"); a claim for breach of contract for failing to provide reasonable notice for the termination of the assignment of the applicant to perform duties in Australia; and a claim for payment in relation to an alleged contractual entitlement that is called the "enhanced redundancy package". 6 For reasons similar to those that I published on 18 September 2009, I take the view that the Court has jurisdiction in this proceeding. It has statutory jurisdiction with respect to the two statutory causes of action and accrued jurisdiction with respect of the causes of action based on alleged contractual obligations. Again, for reasons similar to those pronounced on that occasion, I take the view that the proceeding is of a kind mentioned in O 8 r 2 of the Federal Court Rules. Such a proceeding is one which consists of or includes any one or more of the kinds of proceeding mentioned in the table in that rule. Item 11 in that table is a proceeding based on a breach of a provision of an Act that is committed in Australia. Item 12 is a proceeding based on a breach of a provision of an Act, wherever occurring, seeking relief in relation to damage suffered wholly or partly in Australia. Item 13 is a proceeding in relation to the construction, effect or enforcement of an Act, or a regulation or other instrument having, or purporting to have, effect under an Act. As to the two statutory causes of action on which the applicant relies it is clear that they fit within one or more of those categories. It is unnecessary, therefore, to engage in an inquiry into questions in relation to any alleged contract, as to where the contract was made and what law governs it. 7 As to O 8 r 3(2)(c), I can content myself with saying that the applicant has a prima facie case for some of the relief claimed. I refer in particular to the claim pursuant to the Workplace Relations Act, which is dealt with in my previous reasons for judgment. Having regard to the evidence now put on affidavit by the applicant, I am also satisfied that there is a prima facie case for the relief claimed in relation to the alleged contractual obligation to pay what is called the "enhanced redundancy package." As to other causes of action, it is unnecessary for me to express a view as to whether there is a prima facie case for the relief claimed and I prefer not to do so. 8 The effect of the change to O 8 r 3(2)(c) and the additional evidence that is before me today are sufficient to persuade me to exercise my discretion in favour of the applicant and to allow him both to amend his application and statement of claim and to serve that further amended application and further amended statement of claim outside Australia. 9 Order 8 r 3 of the Federal Court Rules provides for some requirements as to the evidence in relation to an application like this. The evidence must include the name of the foreign country where the person is to be served. That requirement is satisfied in the present case. The respondent is a corporation, incorporated in England. On the evidence before me, it has a registered office in England. That evidence is now more than two years old, and it may be necessary for the applicant to conduct another search to ascertain whether the registered office is still in the same place. The second requirement is that there be evidence as to the proposed method of service. The third requirement is that there be a statement that the proposed method of service is permitted by the relevant convention, if a convention applies or, if there is no convention, by the law of the foreign country concerned. 10 The evidence relating to the third requirement is given largely by reference to information obtained from the internet web page of the Attorney-General's Department in Australia. That information is to the effect that there is no convention, treaty or other agreement in force between Australia and the United Kingdom in relation to the service of documents in civil proceedings. The information indicates that service by private agent is permitted, and that service through an agent, generally a British lawyer, does not breach United Kingdom law and is not considered by the United Kingdom government to be a breach of its sovereignty. Accordingly, the evidence indicates that the proposal is to arrange for a private agent to effect service. Although the affidavit says that the proposal is to arrange for service to be effected validly in accordance with the laws of England and Wales at the respondent's registered office, I do not think that that degree of detail satisfies the requirement that there be evidence as to the proposed method of service, or a statement that the proposed method of service is permitted by the law of England. Accordingly, for the present, I propose simply to indicate that, if such evidence can be provided by means of a further affidavit of the applicant's solicitor, I am content to make orders of the kind sought in the notice of motion filed on 30 August 2010, and to stand the matter over until that further evidence is provided. I certify that the preceding ten (10) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Gray.
West
TWG Services Limited
The Court considered that the jurisdiction, proceeding-category and prima facie case requirements were met for at least some relief, and stated that it was persuaded to allow the further amendments and overseas service. However, because the evidence did not adequately specify the proposed service method, it deferred making the requested orders and stood the matter over pending a further affidavit from the applicant's solicitor ([8]-[10]).