KEYWORDS: ORDERS FOR PRE-TRIAL DISCOVERY AGAINST FOREIGN PARTIES

KEY TAKEAWAYS

The Federal Court of Australia may grant leave to a party seeking to serve an application for pre-trial discovery on a prospective respondent in a foreign jurisdiction.

The Court must consider, amongst other things, the proposed method of service and whether the party has a prima facie case for an order for pre-trial discovery.

The facts

Cook Building and Development Pty Limited (Cook), entered into a contract with Jabiru Satellite Limited (Jabiru), a company within the NewSat Group, for the construction of an installation on a property in South Australia.

Cook asserted that it was owed $1.2 million under two progress payment claims.

Cook contended that Citicorp, who appointed receivers and managers to Jabiru, allowed Jabiru to enter into the contract with Cook without disclosing to Cook that the NewSat Group was in breach of covenants under its financing facilities. Cook claimed that Citicorp had breached a duty of care it owed Cook; or that Citicorp had engaged in misleading or deceptive conduct; or that Citicorp's conduct was unconscionable.

Before commencing proceedings against Citicorp, Cook sought to ascertain the extent to which Citicorp knew, at the relevant time, that Cook was, or would be, performing work under the contract with Jabiru.

Citicorp does not have a registered office in Australia.

Cook brought an ex parte application for leave to serve an originating process on Citicorp in Hong Kong under rules 10.42 and 10.43 of the Federal Court Rules 2011 (Cth).

The decision

White J granted Cook leave. Cook's application satisfied the requirements of rules 10.42 and 10.43 of the Federal Court Rules 2011 (Cth):

  • the proposed method of service (personally or by post to Citicorp's registered office) was authorised by both the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and the relevant law of the People's Republic of China (rule 10.43(3));
  • the Court had jurisdiction to hear Cook's claims against Citicorp, such as a breach of the Australian Consumer Law (rule 10.43(4)(a));
  • an application for leave to serve an application for pre-action discovery is the kind of originating application that may be served outside Australia (rules 10.42 and 10.43(4)(b)); and
  • Cook had a prima facie case for an order for pre-action discovery (rule 10.43(4)(c)).

No discretionary matters pointed against the grant of leave.

http://www.austlii.edu.au/au/cases/cth/ FCA/2015/703.html

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