FEDERAL COURT OF AUSTRALIA West v TWG Services Limited (No 2) [2010] FCA 1069 Citation: West v TWG Services Limited (No 2) [2010] FCA 1069 Parties: COLIN WEST v TWG SERVICES LIMITED File number: VID 1073 of 2008 Judge: GRAY J Date of judgment: 3 September 2010 Catchwords: COSTS – amendment – second amendment of application and statement of claim before service – whether costs application for leave to amend should be costs in the cause or reserved – normal rule that party amending pays costs thrown away – whether order should be made that has potential to visit costs on respondent COSTS – leave to service out of jurisdiction – whether costs of application should be costs in the cause – potential for application to set aside service – costs should be reserved Legislation: Companies Act 2006 (UK) s 1139(1) Federal Court Rules O 8 r 3(3), O 8 r 3(3)(b), O 8 r 3(3)(c)(ii) Date of hearing: 3 September 2010 Place: Melbourne Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 7 Counsel for the applicant: Mr S J Wood and Mr M Follett Solicitor for the applicant: Harmers Workplace Lawyers Counsel for the respondent: The respondent did not appear IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 1073 of 2008 BETWEEN: COLIN WEST Applicant AND: TWG SERVICES LIMITED Respondent JUDGE: GRAY J DATE OF ORDER: 3 SEPTEMBER 2010 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The applicant have leave further to amend the amended application in the form of the document marked exhibit FCW1 to the affidavit of Colin West, sworn on 5 August 2010. 2. The applicant have leave further to amend the amended statement of claim in the form of the document marked exhibit FCW2 to the affidavit of Colin West, sworn on 5 August 2010. 3. The applicant file the further amended application and the further amended statement of claim on or before 8 September 2010. 4. The applicant have leave to file in Court the affidavit of Lesley Maclou, affirmed on 3 September 2010. 5. The applicant have leave to serve the further amended application and the further amended statement of claim on the respondent in England by having a private agent leave them at the registered office of the respondent at Integra House, floor 2, Vicarage Road, Egham, Surrey, England. 6. The proceeding be listed for directions on a date to be fixed. 7. There be no order as to the costs of the amendment of the application and the statement of claim. 8. The applicant's costs of the application for leave to serve the further amended application and the further amended statement of claim outside Australia be reserved. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 1073 of 2008 BETWEEN: COLIN WEST Applicant AND: TWG SERVICES LIMITED Respondent JUDGE: GRAY J DATE: 3 SEPTEMBER 2010 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 These reasons for judgment are intended to be read with the reasons for judgment I pronounced earlier today. At that time, I stood over this application for leave to serve originating process in a foreign country, pending the filing of a further affidavit dealing with matters required by O 8 r 3(3) of the Federal Court Rules ("the Federal Court Rules"). 2 On the resumption of the application this afternoon, counsel for the applicant sought leave to file in Court the affidavit of Lesley Maclou, affirmed this day. That affidavit does a number of things. First, it updates the information available concerning the location of the registered office of the respondent in England. Both in 2008 and currently, that registered office is at Integra House, floor 2, Vicarage Road, Egham, Surrey, England. Second, the affidavit confirms that there is no convention, treaty, or other agreement in force between Australia and the United Kingdom on the service of documents in civil proceedings. For this reason, it is necessary to fall back on O 8 r 3(3)(c)(ii) of the Federal Court Rules, and direct service by a method that is permitted by the law of England. Third, the affidavit is explicit about the proposed method of service, a matter required by O 8 r 3(3)(b) of the Federal Court Rules. The proposed method of service is to arrange for a private agent, a solicitor admitted to practice in England and Wales, to leave the documents at the respondent's registered office. Fourth, the affidavit establishes that that is a method of service that is permitted by the law of the United Kingdom, specifically, by s 1139 of the Companies Act 2006 (UK), which provides, in subs (1): A document may be served on a company registered under this Act by leaving it at, or sending it by post to, the company's registered office. 3 The earlier gaps in the material having been filled by this affidavit, it is now appropriate that I should proceed to make the orders sought by the applicant. 4 It is also appropriate that I should give reasons for the orders that I propose to make as to costs. In the notice of motion filed on 30 August 2010, the applicant seeks an order that his costs of the motion be costs in the cause. In fact, the notice of motion contains more than one motion. So far as it contains motions to further amend the originating process, it is obviously inappropriate to seek an order for costs that would have the potential effect of visiting the costs of the amendment on the respondent. The applicant's need to amend further the originating process is entirely the result of the applicant's own doing, and in accordance with the normal rule relating to amendments, the costs of the amendment ought to be borne by the applicant. Indeed, the usual rule would be that the applicant would be liable for costs thrown away by reason of the amendment. Because the originating process in either of its two previous forms has not been served on the respondent, it is unlikely that there would be any costs thrown away. 5 The remaining motion the subject of the notice of motion filed on 30 August 2010 is the motion for leave to serve the further amended originating process in a foreign country. It is appropriate that the applicant, having been successful in obtaining such leave, should have the opportunity to recover his costs of the application for it, in the event that he is successful. In the earlier judgment to which I have referred, I ordered that there be no order as to the applicant's costs of the original application for leave to serve the originating process outside Australia. It was appropriate then that the applicant should not have the opportunity to force the respondent to pay the costs of that unsuccessful application. 6 As I understand the costs position, it remains available to the applicant to seek the costs of commencing the proceeding. As I have said, the applicant ought to have the opportunity to succeed in relation to the costs of the successful application for leave to serve outside the jurisdiction. It does not follow that the appropriate order is that those costs be costs in the cause. In my view, it would be more appropriate to reserve those costs. This is because of the possibility that there might be an application by the respondent to set aside service. If such an application were made, and if it were to succeed, then the respondent ought not to be saddled with an order that has the potential to render it liable to pay the costs of this application at the end of the proceeding. 7 For those reasons, and for the reasons given in my reasons for judgment this morning, I make the following orders: 1. The applicant have leave further to amend the amended application in the form of the document marked exhibit FCW1 to the affidavit of Colin West, sworn on 5 August 2010. 2. The applicant have leave further to amend the amended statement of claim in the form of the document marked exhibit FCW2 to the affidavit of Colin West, sworn on 5 August 2010. 3. The applicant file the further amended application and the further amended statement of claim on or before 8 September 2010. 4. The applicant have leave to file in Court the affidavit of Lesley Maclou, affirmed on 3 September 2010. 5. The applicant have leave to serve the further amended application and the further amended statement of claim on the respondent in England by having a private agent leave them at the registered office of the respondent at Integra House, floor 2, Vicarage Road, Egham, Surrey, England. 6. The proceeding be listed for directions on a date to be fixed. 7. There be no order as to the costs of the amendment of the application and the statement of claim. 8. The applicant's costs of the application for leave to serve the further amended application and the further amended statement of claim outside Australia be reserved. I certify that the preceding seven (7) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Gray. Associate: Dated: 29 September 2010 >