AMCI Pty Ltd v Corcoal Management Pty Ltd & Ors [2013] QSC 50

SUPREME COURT OF QUEENSLAND CITATION: AMCI P/L v Corcoal Management P/L & Ors [2013] QSC 50 PARTIES: AMCI PTY LTD ACN 124 249 485 (plaintiff) v CORCOAL MANAGEMENT PTY LTD ACN 094 680 636 (first defendant) AND NEIL JAMES BROWN (second defendant) AND GMG ASSOCIATES FZE (third defendant) FILE NO/S: BS 12363 of 2012 DIVISION: Trial PROCEEDING: Application DELIVERED ON: 5 March 2013 DELIVERED AT: Brisbane HEARING DATE: 26 February 2013 JUDGE: Jackson J ORDERS: It is ordered that: 1. the application is adjourned to a date to be fixed; and 2. the costs of the adjournment are reserved. CATCHWORDS: PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SERVICE – Where the plaintiff is required to personally serve originating process upon the defendant – Where the defendant is outside Australia and was sent the originating process by email – Where the plaintiff seeks an ex parte order to authorise informal service of the originating proceeding – Whether the court should exercise its discretion to allow informal service by email on a defendant outside of Australia under r 117 -- 1 of 9 -- 2 Acts Interpretation Act 1954 (Qld), s 39 Corporations Act 2001 (Cth), s 109X Statutory Instruments Act 1992 (Qld), s 14(1) Uniform Civil Procedure Rules 1999 (Qld), r 105, r 107, r 116, r 117, r 124(1)(g)(ii), r 129 Equuscorp Pty Ltd & Anor v Glengallan Investments Pty Ltd & Ors [2005] QSC 389, cited D’Ath v TNT Aust Pty Ltd [1992] 1 Qd R 369, followed Nabulsi v Nahyan 2009 WL 1658017, cited COUNSEL: A Stumer for the plaintiff D de Jersey for the first and second defendants No appearance for the third defendant SOLICITORS: Allens for the plaintiff Hopgood Ganim for the first and second defendants [1] JACKSON J: This application raises two questions: first as to the scope of UCPR 117 in relation to service on a defendant outside Australia and, secondly, as to the appropriate exercise of discretion under that rule. The plaintiff seeks an ex parte order which would authorise informal service of the originating proceeding on the third defendant, a corporation which is registered in the Ajman Free Zone in the United Arab Emirates. The basis of the application is that the plaintiff’s solicitors sent an email to [email protected] on 21 December 2012 attaching an electronic copy of the claim and statement of claim. On 21 January 2013, Mr Ghalib Datta, a director of the third defendant, sent an email to the plaintiff’s solicitors which stated: “We are in receipt of your claim letter with registry number 12363/12 with AMCI Pty Ltd as the plaintiff and GMG Associates FZE as the third defendant. This mail was sent to us on the 21 st of December 2012 by you. This mail was received during the Christmas and New Year holidays and it is not possible for us to reply within the time frame requested in the claim. We request an extension of time of one month to file our reply and hope to send you a reply on or before the 21 st February 2013.” [2] UCPR 117 provides: “If - (a) for any reason, a document is not served as required by this chapter but the document or a copy of it came into the possession of the person to be served; and (b) the court is satisfied on evidence before it that the document came into the person's possession on or before a particular day; -- 2 of 9 -- 3 the court may, by order, decide that the possession of the document is service for these rules on the day it came into the person's possession or another day stated in the order.” [3] At common law, service was not generally permitted out of the jurisdiction. Rules of court, as a statutory extension of the court’s territorial jurisdiction, have long since served that purpose. Such rules are both facultative and limiting, in the sense that service out of the jurisdiction is not authorised in cases outside the scope of the statutory provisions. Chapter 4 pt 7 of the UCPR contains the specific rules operating in respect of service outside Australia. In this case, UCPR 124(1)(g)(ii) authorises service of the proceeding outside Australia as one relating to a contract made by one or more parties carrying on business or residing in Queensland, being the plaintiff, or at least arguably does so. [4] In those circumstances, the plaintiff submits that UCPR 117 applies, because service of the claim is authorised by, but has not been made as required by ch 4, in circumstances where the claim or a copy of it came into the possession of the third defendant on 21 December 2012, or before 21 January 2013. [5] The authorisation to serve a proceeding outside Australia under UCPR 124 is regulated by UCPR 129 which provides: “(1) If service outside Australia of an originating process, a counterclaim or a third party notice is authorised under this part, then parts 1 to 5 apply to the service. (2) However, nothing in these rules, or in any order of the court made under these rules, authorises or requires the doing of anything in a country in which service is to be effected that is contrary to the law of the country.” [6] UCPR 117 is in ch 4 pt 5, and according to UCPR 129(1) therefore applies to service authorised outside Australia under UCPR 124. As well, the text of UCPR 117 applies that rule where “a document is not served as required by this chapter”, which includes UCPR 124 and 129. [7] The plaintiff submits that there are difficulties with the service of the third defendant as a corporation in accordance with ch 4 pt 3 of the UCPR. UCPR 105(1) generally requires personal service of an originating proceeding. UCPR 107 provides: “A document required to be served personally on a corporation must be served in the way provided for the service of documents under the Corporations Act or another applicable law.” [8] The plaintiff submits that s 109X of the Corporations Act 2001 (Cth), which provides for the manner in which a document may be served on a company, does not apply to the third defendant because it is not a “company” as defined in s 9 of the Corporations Act. That may be accepted, because the third defendant is a foreign company not registered under the Corporations Act1. A company is 1 Section 601CE of the Corporations Act. -- 3 of 9 -- 4 undoubtedly a corporation within the meaning of UCPR 107 and s 109X is the non- exclusive manner prescribed under the Corporations Act for service on such a corporation. UCPR 107 should thus be construed as directing a way for service on a corporation comprising a company, that is, as provided by s 109X, but as not directing that way for service on the third defendant. That conclusion is also supported by the fact that none of the ways for service provided for in s 109X could apply to the third defendant. It does not have a “registered office” under the Corporations Act, as defined in s 9, for a document to be left at or posted to. It does not have a director who resides in Australia or in an external Territory for a document to be delivered to. [9] By similar reasoning, s 601CX of the Corporations Act does not apply to the third defendant. [10] However, s 39 of the Acts Interpretation Act 1954 (Qld) provides: “(1) If an Act requires or permits a document to be served on a person, the document may be served- … (b) on a body corporate – by leaving it at, or sending it by post, telex, facsimile or other similar facility, to the head office, a registered office or a principal office of the body corporate” [11] The UCPR require that the claim be served on the third defendant. And s 14(1) of the Statutory Instruments Act 1992 (Qld) applies provisions of the Acts Interpretation Act, including s 39, to the UCPR as a statutory instrument2. Accordingly, UCPR 107 provides for service under s 39 of the Acts Interpretation Act, as “another applicable law”, unless a contrary intention appears in UCPR 107. In my view, no contrary intention appears. [12] Thus, s 39 provides for a manner of personal service on the third defendant, unless doing so would be contrary to the law of the United Arab Emirates within the meaning of UCPR 129(2).3 [13] The plaintiff apparently attempted to effect service by post to an address described as “EOCE 46, Ajman Free Zone, United Arab Emirates”. The envelope containing the documents has been returned with a notation on the envelope that the address was “incomplete”. There is no evidence that the address to which the claim was posted was the head office, a registered office or a principal office of the third defendant. That gap in the evidence might have been remediable. However, the return of the envelope bearing the notation that the postal address was incomplete negatives the inference that might otherwise have been available that service by post was effective. 2 See Equuscorp Pty Ltd & Anor v Glengallan Investments Pty Ltd & Ors [2005] QSC 389 at [24]; and see s 88 of the Supreme Court of Queensland Act 1991 (Qld), which assumes that the Statutory Instruments Act applies to rules of court made under s 85, including the UCPR 3 There is no evidence about this. And it must be for a plaintiff to adduce any evidence, if it wishes to proceed ex parte. But I note that in Nabulsi v Nahyan 2009 WL 1658017 there was evidence given that the United Arab Emirates does not have any law that specifically prohibits service of suits from outside the country and that service effected through an agent and service effected by leaving documents with a person at a place of business are allowed. -- 4 of 9 -- 5 [14] Returning to the question of the application of UCPR 117, I accept the plaintiff’s counsel’s submission that the rule assumes that service is authorised under ch 4. Therefore, for UCPR 117 to apply in a case where service would be effected outside Australia, it is necessary for an applicant to show that service is authorised under ch 4 pt 7, or at least arguably so. Otherwise, UCPR 117 could operate as an extension of the authority to serve outside Australia which is conferred by UCPR 124 in particular proceedings. I do not consider that UCPR 117 was intended to have that operation. [15] There is another contextual consideration which might affect the answer to the question whether, on its proper construction, UCPR 117 extends to a case where service outside Australia is authorised. UCPR 116 provides that the court may make an order substituting another way of serving of a document where it is impracticable to serve the document in a way required under ch 4. Noticeably, UCPR 116(4) provides: “The court may make an order under this rule even though the person to be served is not in Queensland or was not in Queensland when the proceeding started.” [16] It might be argued that UCPR 117 does not contain a similar provision confirming the court’s power to make an order under that rule where the person to be served is not in Queensland or was not in Queensland when the proceeding started. However, it seems to me that the reason for UCPR 116(4) can be explained otherwise. In Laurie v Carroll4 the High Court, under rules as to service out of the jurisdiction and for substituted service contained in the Rules of the Supreme Court of Victoria, decided that if a defendant was within the jurisdiction at the time of issue of a writ for service within the jurisdiction but subsequently left the jurisdiction, a foundation for an order for substituted service may exist. If, however, the defendant was not in the jurisdiction at the time of issue of the writ, an order could not be made for substituted service. It seems that UCPR 116(4) was designed to reverse that result, which was also the interpretation given to the relevant Rules of the Supreme Court of the High Court in England5. [17] In my view, it does not follow that because there is no specific equivalent to UCPR 116(4) in UCPR 117 that the latter should be interpreted as not applying to a proceeding where service outside Australia would be authorised under UCPR 124 and 129, if the requirements of UCPR 117 have been satisfied. [18] As previously stated, the plaintiff has established that an electronic copy of the claim came into possession of the third defendant when it was received by email by a director as was subsequently acknowledged by that director. I am also inclined to the view that the document came into the third defendant’s possession on 21 December 2012, but it would not matter for present purposes whether a later date were chosen as the particular date, being at the latest 21 January 2013 when the director acknowledged receipt of the 21 December 2012 email attaching the copy of the claim. 4 [1958] HCA 4; (1958) 98 CLR 310 5 Myerson v Martin (1979) 1 WLR 1390 -- 5 of 9 -- 6 [19] The remaining question is whether an order should be made under UCPR 117 as a matter of discretion. The plaintiff relies on a number of matters as going to that question. Chief among them seem to be the contentions that there are said to be significant legal and practical difficulties in effecting service on a company in the United Arab Emirates. [20] As to the legal difficulties, the plaintiff relies on the circumstances that the United Arab Emirates is not a convention country within the meaning of UCPR 130 and UCPR 140 and is not a Hague Convention country for the purposes of div 3 of ch 4 pt 7 of the UCPR. The plaintiff submits that it follows that, as I have outlined above, UCPR 129(1), 105(1) and 107 lead to the question whether s 109X of the Corporations Act or s 39 of the Acts Interpretation Act, or neither of them, applies. [21] The plaintiff submits that because the means of service provided for service on a foreign corporation outside of a convention country or a Hague Convention country is not clear, the discretion under UCPR 117 should be more readily attracted. In my view, that is a misconception. The true question is what is an authorised method of service? If service under s 39 of the Acts Interpretation Act is the only appropriate method provided for service on the third defendant under statute, that is what is required. The operation of UCPR 117 is not to be extended by any need to resolve a doubt about what is an applicable method. And if there were unresolved difficulty, the power of the court to make directions under UCPR 367 would be an appropriate pathway to make a specific order as to a manner of service. In my view, UCPR 117 is not intended to resolve difficulties in the manner of service required by the UCPR. [22] The plaintiff also relies on what it describes as practical difficulties in serving a document in the United Arab Emirates. In this respect, it makes two points. First, it relies on the fact that documents posted to the address described as “EOCE 46, Ajman Free Zone, United Arab Emirates” were returned with a notation on the envelope that the address was “incomplete”. [23] Secondly, it contends that there are significant practical problems serving documents personally in the United Arab Emirates, relying on an extract of text from the website of a company or business named “Process Service Network” which suggests that prices of $1,495 for informal service and $2,700 for expedited service within 30 days are payable to effect service and that there can be difficulties with the reliability of the agents to effect service. This information is deployed by the plaintiff as the basis for a submission that it is expensive and time consuming to deliver documents to the United Arab Emirates. [24] No doubt it is regularly more expensive and time consuming to serve originating process of the Supreme Court of Queensland outside Australia than inside Australia. That cannot, per se, be a sufficient justification in my view for a conclusion that substituted or informal service is justified. Neither the cost of service as stated, nor the suggested delay of a few weeks in effecting service, justifies an adverse conclusion about a plaintiff’s ability to serve originating process in the United Arab Emirates in a way that would comply with UCPR 107. [25] It should be added that the plaintiff sought to rely upon other information extracted from the web page that warned against potential delay due to alleged corrupt behaviour of relevant authorities or agents in serving documents, as though such -- 6 of 9 -- 7 matters were endemic in the United Arab Emirates. Those are serious allegations. An unverified web page is not a satisfactory evidentiary basis upon which to make them. If the court is asked to act on such a factual basis, in my view, there should be proof from a verifiable source such as a named informant who can be seen to be reliable and responsible for the information and who might be expected to have some basis for the allegation or opinion.6 [26] As to the first of the plaintiff’s practical problems, namely the identification of the address of the third defendant, it seems on the evidence that as yet the plaintiff has made no attempt to identify whether the relevant address exists or what needs to be done to resolve any doubt as to the location of the registered or other office of the third defendant. In those circumstances, there is little weight behind the suggestion that the court should exercise its power to treat informal service as service for the rules. [27] In substance, the plaintiff does no more than say that it fears that it might encounter significant difficulties in effecting service as required by ch 4 and because that might be so the court should exercise its power under UCPR 117. [28] The plaintiff did not adduce any evidence as to any difficulty it had experienced in dealing with any relevant governmental authority to ascertain the whereabouts of the third defendant’s registered office or place of business in Ajman. There is a website of the Government of Ajman.7 More pertinently, there is a website of the Ajman Free Zone Authority8 and a link on that page to a brochure9. The brochure identifies the following information about an “FZE” which is the suffix in the third defendant’s name set out in the title of this proceeding: “(1) FREE ZONE ENTITY FZE: FZE is an entity formed and registered in Ajman Free Zone and regulated by the Free Zone Authority, in accordance to the Amiri Decree No. 3 of 1988 as amended by the Amiri Decree No. 3 of 1996. FZE enjoys a separate legal entity and is owned (100%) by either a person or a corporate body. Such an entity must have a capital equivalent to US $50,000. The liability of the owner is limited to the amount of the share capital. FORMATION AND REGISTRATION OF THE FZE BY A CORPORATE ENTITY A. Any corporate entity wishing to establish an FZE must complete an application form provided by the Authority and attach the following documents: 6 Compare, for example, Nabulsi v Nahyan 2009 WL 1658017 (a decision of the United States District Court, S.D. Texas, Houston Division given on 12 June 2009, which coincidentally involved Process Service Network LLC and in which Mr Tucker of that corporation appears to have given written evidence) 7 http://www.ajman.ae/ar/pages/default.aspx 8 http://www.afza.gov.ae/en/index.php?option=com_content&view=frontpage&Itemid=1 9 http://www.afza.gov.ae/en/index.php?option=com_content&view=category&layout=blog&id=18&It emid=25 -- 7 of 9 -- 8 1. The feasibility study of the project and the anticipated schedule for its completion together with relevant plans and drawings (for industrial project). 2. The memorandum and/or Articles of Association of the Corporate entity. 3. Incorporation or Registration Certificate from the competent authority in the country where the Corporate entity is formed. 4. Decision or Board resolution of the competent authority of the corporate entity authorising a representative or manager with Power of Attorney duly notarised and legalised. 5. Passport copy of the representative or manager. 6. The above documents should be certified by the Chamber of Commerce and the UAE Embassy in the Country of origin. B. The Free Zone Authority being satisfied that the relevant documents are submitted, shall register the FZE and issue a Certificate of Registration and a Free Zone Licence.” [29] As well, it is notorious that a number of international legal firms and accountancy firms have offices in and practise in the United Arab Emirates. In the absence of any evidence about the matter, it is not appropriate for this court to assume that there will be any real difficulty in the plaintiff’s way in ascertaining any registered or other office that the third defendant may have in Ajman in order to effect service in accordance with s 39 of the Acts Interpretation Act. [30] In general, it seems to me that a plaintiff should try a little harder to effect service in accordance with ch 4 pt 7 than has occurred to date in this case, at least on the evidence before me, before falling back on the power under UCPR 117 to dispense with compliance with the requirements that usually apply. Service by email of originating process, for which personal service is required, is not usually permitted. It is permitted where the rules do not require personal service10, but that is not this case. The plaintiff referred me to a number of cases where substituted or informal service had been ordered, including by email. I do not find them of assistance in exercising the discretion in this case. In a number of them, it was shown that it was not practicable to serve the defendant by normal methods. In others, the defendant was not a foreign corporation or individual with no ties to the jurisdiction. In some, it was necessary to give urgent notice of the making of a freezing order or the like. [31] In my view, the circumstance that the court is exercising jurisdiction under the provisions of ch 4 pt 7 over a defendant which has no other apparent ties to the State of Queensland is a relevant factor to take into account in deciding whether, as a matter of discretion, informal service should be ordered under UCPR 117. In an admittedly different context, it was said in this court in D’Ath v TNT Aust Pty Ltd11: “It was further submitted that the object of all service is only to give notice to the party concerned and it is uncontested that the third party has received the amended third party documents. That might well be so, but the courts have closely supervised the serving of process outside the jurisdiction upon a subject of a foreign 10 UCPR 112(e)(ii) and 112(f)(ii) 11 [1992] 1 Qd R 369 at 382 -- 8 of 9 -- 9 country, and it should be noted that this company is the subject of a truly foreign sovereign unlike the Hong Kong, United Kingdom and Victorian companies the subject of McPherson J’s comment in Australian Commercial Research and Development Limited v. ANZ McCaughan Merchant Bank Limited at 109. Accordingly, what might sometimes be sufficient for service within the jurisdiction will not satisfy the requirements of the Rules for service outside the jurisdiction in a foreign country, at least not without resort to O. 93 r. 17.” [32] There is no uniformity in the rules of court in different Australian jurisdictions as to what will be sufficient for satisfactory informal service by reason of receipt of or attention being drawn to a document. For example, the comparable rule in the Federal Court of Australia12, requires that “it is not practicable to serve a document on the person in a way required by these rules” as a condition of making an order that the document is taken to have been served, whereas the forms of the relevant Victorian Supreme Court rule13 and the New South Wales Supreme Court rule14 are closer to UCPR 117. [33] It seems to me that the appropriate order upon the present application is to adjourn the hearing of the application to a date to be fixed. It hardly needs to be said that if the plaintiff experiences real difficulty in ascertaining the whereabouts of the third defendant’s head office, registered office or principal office in the United Arab Emirates by following what might be the usual procedures for doing so, or in effecting service in accordance with s 39 of the Acts Interpretation Act, it may re- new the application for an order under UCPR 117 or apply for substituted services under UCPR 116. 12 Rule 10.23 of the Federal Court Rules 2011 (Cth) 13 Rule 6.11 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) 14 Rule 10.14(3) of the Uniform Civil Procedure Rules 2005 (NSW) -- 9 of 9 --