Service outside Australia and the Hague Convention
Jabiru Satellite Limited (In Liquidation) (Receivers and Managers Appointed) & Newsat Limited (In Liquidation) (Receivers and Managers Appointed) v Société Générale & Ors [2021] VSC 544
A possible inconsistency between Australia’s treaty obligations and the rules designed to implement them.
Jabiru Satellite Limited (In Liquidation) (Receivers and Managers Appointed) & Newsat Limited (In Liquidation) (Receivers and Managers Appointed) v Société Générale & Ors [2021] VSC 544
In ruling to extend the validity of a writ on 2 September 2021, Justice Delany of the Supreme Court of Victoria recently reaffirmed the primacy of Australia’s treaty obligations, specifically the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Convention), over subordinate legislation.
That is hardly surprising. However, what may be surprising is the way His Honour’s judgment highlights a possible inconsistency between the terms of the Hague Convention and the domestic Australian civil procedure framework enacted to facilitate service pursuant to it.
In Jabiru Satellite Limited (In Liquidation) (Receivers and Managers Appointed) & Anor v Société Générale & Ors [2021] VSC 544, Delany J ordered the extension of the validity of a writ filed by the plaintiffs in June 2020. His Honour’s decision stands for the proposition that the Court’s discretion to extend the validity of a writ may be exercised in favour of a plaintiff who takes reasonable steps to serve a defendant before the writ expires, because such reasonable steps are a “good reason” to exercise that discretion. Here the evidence was of the plaintiffs’ determined efforts to bring the writ to the attention of two foreign defendants, the Export-Import Bank of the United States and Citicorp International Limited, just before its expiry, evidence which allowed the judge to conclude that both defendants in question were probably aware of the writ by this time. A balancing of prejudice consequently fell in favour of the Court exercising its discretion to extend the writ.
That the plaintiffs went to such lengths to bring the writ to the attention of foreign defendants, instead of simply serving it on them, was on account of Order 80 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules), which requires service pursuant to the Hague Convention (Hague Service) to be completed in accordance with a specific procedure. Order 80 is broadly similar to Part 11A of the Uniform Civil Procedure Rules 2005 (UCPR) in NSW.
Specifically, the plaintiffs said, as both defendants were located in countries signatory to the Hague Convention, Order 80 (specifically O.80, r.02): (a) has the effect of excluding the ordinary provisions for overseas service set out in Order 7; and (b) requires service to be completed by way of application to the Prothonotary as the first step in the reciprocal, intergovernmental service process (of indeterminate duration) which is what the Hague Convention ultimately is understood to stand for.
As to the plaintiffs’ approach, while Delany J noted that the plaintiffs’ application was not the occasion to definitively consider the nexus between Orders 7 and 80 and the Hague Convention, His Honour expressed doubt as to whether the Hague Service procedure described in Order 80 could affect anything set out in the convention itself.
His Honour directed attention to Article 10 of the Hague Convention, which states that the convention does not, if the state of destination does not object (in practice by signing up to this part of the convention), interfere with a party’s freedom to send documents by post directly overseas. His Honour noted that Article 10 operates independently of the intergovernmental process to which Order 80 is directed and concluded that Article 10 “expressly reserves the right of a party to serve a document in a manner that would otherwise have been permitted by the jurisdiction in which service is to be effected”.
This conclusion draws heavily on the Hague Convention preamble, which states that the signatory states (among other things) “desir[e] to create appropriate means to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time”.
The effect of His Honour’s observations (which, again, were not central to the plaintiffs’ application) may be that although Order 80 of the Rules in Victoria (and its equivalents) are designed to govern the process of effecting Hague Service in Australia, Article 10 of the Hague Convention itself may actually permit service overseas outside of this domestic framework, providing the destination country does not object.
Banton Group acts for the plaintiff in these proceedings, which are brought by liquidator of Jabiru Satellite Limited and Newsat Limited against a syndicate of foreign banks and the French governmental guarantor entity, COFACE, in relation to the failure of the Jabiru Project in 2015.
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