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Service of proceedings overseas

Feature Articles

Cite as: (2004) 78(4) LIJ, p.54

A number of obstacles await a would-be plaintiff seeking to commence proceedings in the Victorian Supreme Court against a defendant based overseas.

By Justin Castelan

A party initiating proceedings against an overseas defendant in the Supreme Court of Victoria must comply with O.7 of the Court’s Rules.[1] The High Court touched on the operation of those Rules with respect to a claim for defamation relating to publication over the Internet,[2] so it is timely to remind practitioners of the importance of following prescribed procedure.

The procedure for service abroad prescribed by O.7 appears simple enough, but there are several traps that a potential plaintiff can fall into at an early stage. These traps can prove fatal to the proceeding, or can cause substantial cost to a party if the proceedings have to be re-served.

Rule 7.01(1)

Rule 7.01(1) contains a list of sub-rules numbered (a)-(n). Those sub-rules describe the types of proceedings that can be served outside Australia without the leave of the Court. When initiating proceedings, the plaintiff must identify which of those sub-rules applies to the proceeding. General examples of the types described include proceedings:

  • in respect of a breach of contract where the contract was made in Victoria (r7.01(1)(f)(i));
  • where the breach of contract is committed in Victoria (r7.01(1)(g));
  • founded on a tort committed within Victoria (r7.01(1)(i)); or
  • brought in respect of damage suffered wholly or partly in Victoria and caused by a tortious act or omission wherever occurring (r7.01(1)(j)).

The endorsement to the statement of claim

When serving the originating process, the plaintiff must serve an endorsement to the statement of claim that states the facts and the particular paragraph of r7.01(1) relied on in support of the service.[3] It is also prudent to summarise the facts relied on to bring the claim within those grounds, and not simply to refer to paragraphs within an attached statement of claim.[4] Otherwise, the endorsement might be defective and service could not then be effected.[5] owever, the Court might consider such a failure to comply to be an irregularity and dispense with such compliance.[6]

In any event, it is necessary to give careful consideration to which of the specific sub-rules within r7.01(1) the claim falls within. Although the action usually relates to a contract or a tort, there may be an issue depending on where the cause of action is said to have arisen. For instance the tort of defamation is committed where the damage to reputation occurs – ordinarily where the defamatory material is available in comprehensible form.[7] If a product is manufactured negligently in Canada, then there is no commission of a tort within Victoria for the purposes of r7.01(1)(i); however, if the plaintiff can show damage within Victoria, the proceeding could then fall under r7.01(1)(j).[8] There are also complications if the cause of action arises under a statute. It is worth noting that there is authority for the proposition that the word ‘tort in r7.01(1)(i) can include references to statutory causes of action such as breaches of:

  • s52 of the Trade Practices Act 1974 (Cth) for misleading or deceptive conduct;[9]
  • companies legislation;[10] and
  • patent and trade mark legislation.[11]

A claim for contribution under s24 of the Wrongs Act 1958 (Vic) is a proceeding of a kind to which r7.01(1)(j) applies.[12] However, it has been held that a statutory claim for indemnity by the Victorian WorkCover Authority with respect to payments it made to an injured worker were not “in respect of damage” and did not fall within the auspices of r7.01(1)(j).[13] A quantum meruit claim has been held to fall within r7.01(1)(f) or (g).[14]

Service of the proceedings

In serving an overseas defendant, the plaintiff must comply with the laws of the country in which service is effected (r7.03), or comply with the laws of personal service in Victoria.[15] Depending on the country involved, this might require the originating process to be accompanied by a translation and served through diplomatic channels. For the purposes of proving service in an application, technically, the plaintiff ought to adduce evidence from an expert in international law to prove what the law of service in that particular country is; however, evidence from an experienced practitioner in that foreign jurisdiction may be sufficient.

The defendant’s application to set aside or stay the proceeding
Once served, if the defendant does not file an appearance, then the plaintiff must obtain leave to proceed (r7.04) and demonstrate that the originating process makes a claim that is contained in r7.01(1). If the defendant chooses to file a conditional appearance, it may then challenge the jurisdiction of the Court, asking either for an order that service of the originating process be set aside or for an order staying the proceedings on the grounds that the Court is not a convenient forum to determine the dispute (r7.05).

The defendant may apply to have the proceeding set aside on either of two grounds:

  • that the claim is not one described in r7.01(1); or
  • that the claim has insufficient prospects of success to warrant putting an overseas defendant to the time, expense and trouble of defending it.

In hearing such an application, the Court can place the plaintiff’s claim under some scrutiny. If the plaintiff’s court documentation or affidavit material is inadequate, a proceeding is at risk of being set aside. The onus is on the plaintiff to persuade the Court that it has a strong arguable case that service is justified under one of the sub-rules of r7.01(1).[16] This depends on the nature of the allegations put and not on whether those allegations will be made good at trial.[17]

On occasion, the Court has analysed the plaintiff’s affidavit material and set aside the proceeding. For instance, the Court has concluded variously that:

  • the plaintiff has failed to set out the primary facts relied on to demonstrate a good or strongly arguable case that the defendants committed a tortious act or omission;[18]
  • the plaintiff failed on its material to establish that it was entitled to recover against the defendants on a quantum meruit basis;[19] and
  • a claim had such poor prospects of success that it ought not proceed.[20]

With regards to showing that the claim has insufficient prospects of success, the defendant must satisfy the same test as if it brought an application for summary judgment.[21]

If the defendant brings an application to stay the proceeding on the grounds that the Court is not a convenient forum to determine the dispute, it will be for the defendant to contend that there is another jurisdiction that is more appropriate and that the Victorian court is clearly so inappropriate a forum to determine the dispute that it would be oppressive or vexatious for the proceeding to continue. The Court would then consider issues such as where the parties live, where the transaction took place, the availability of other forums and the convenience of the parties.[22]

Conclusion

Given the potential threat posed by an out of jurisdiction defendant’s application to set aside, the plaintiff should take care to ensure that the proceeding is served and endorsed in accordance with the Rules. If service is set aside, substantial cost and delay will be incurred in re-serving the originating process correctly. If the proceeding itself is set aside, it is obviously a disaster for the plaintiff. As for the overseas defendant, given the chance to have the proceeding set aside at such an early stage, it will likely try on that chance, and the onus then lies on the plaintiff to establish that the proceeding should remain on foot.


JUSTIN CASTELAN is a member of the Victorian Bar, practising mainly in commercial law. Before coming to the Bar, he was a solicitor at Minter Ellison and Holding Redlich in their commercial litigation and media law departments.


[1] Chapter I – Supreme Court (General Civil Procedure) Rules 1996.

[2] Dow Jones & Company Inc v Gutnick [2002] HCA 56.

[3] Rule 7.02.

[4] Fujitsu Australia Ltd v Dewar Electronics Pty Ltd & Adda Corporation [2001] VSC 222 at [25], [29]; Whinnen v Cussons (International) Ltd (unreported, 24 February 1998, Beach J). However, see also Pivot & Anor v Hoechst & Anor [2000] VSC 262 at [13].

[5] Whinnen, note 4 above, at 3 per Beach J.

[6] Fujitsu, note 4 above at [32]-[39].

[7] Note 2 above at [44] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

[8] Granite Springs Pty Ltd v Intercooler Water Dispensers Pty Ltd & Ors [2000] VSC 224 at [12]-[18].

[9] Commonwealth Bank v White; ex parte Lloyd’s [1999] 2 VR 681 at 699.

[10] Note 9 above at 700.

[11] Spotless Group Ltd v Proplast Pty Ltd (1987) 10 IPR 668.

[12] Australian Mutual Provident Society & Ors v GEC Diesels Australia Ltd [1989] VR 407.

[13] Victorian WorkCover Authority & Anor v Orientstar Shipping Corporation [2003] VSC 311.

[14] Schweitzer v Kronen Verwaltungs Gmbh & Anor [1998] VSC 190 at [43].

[15] Note 13 above at [14].

[16] Williams v Society of Lloyd’s [1994] 1 VR 274 at 291.

[17] Agar v Hyde (2000) 173 ALR 665 at 679 per Gaudron, McHugh, Gummow and Hayne JJ; per Gleeson CJ at 667.

[18] Note 8 above.

[19] Note 14 above, at [78]-[79.]

[20] Agar v Hyde, note 17 above.

[21] Note 20 above at 681 per Gaudron, McHugh, Gummow and Hayne JJ.

[22] Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 at 478; Oceanic Sunline Special Shipping Co Inc v Fay (1988) 165 CLR 197; and Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538.

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