International Maritime Services Pty Ltd v Lumary S.A. trading as Colonia Express [2016] FCA 160

FEDERAL COURT OF AUSTRALIA

International Maritime Services Pty Ltd v Lumary S.A. trading as Colonia Express [2016] FCA 160 File number: WAD 4 of 2016

Judge: MCKERRACHER J

Date of judgment: 18 February 2016

Legislation: Admiralty Act 1988 (Cth) ss 4, 9 Federal Court Rules 2011 (Cth) rr 10.41, 10.42, 10.43, 10.44(1)

Cases cited: Beluga Shipping GmbH & Co v Headway Shipping Limited (No. 2) (2008) 251 ALR 620 Laurie v Carroll (1958) 98 CLR 310

Date of hearing: 18 February 2016

Registry: Western Australia

Division: General Division

National Practice Area: Admiralty and Maritime

Category: No Catchwords

Number of paragraphs: 15

Counsel for the Applicant: Ms J Routley

Solicitor for the Applicant: Cocks Macnish

Counsel for the Respondent: The Respondent did not appear

ORDERS WAD 4 of 2016

BETWEEN: INTERNATIONAL MARITIME SERVICES PTY LTD (ACN 096 311 189) Applicant

AND: LUMARY S.A. T/AS COLONIA EXPRESS Respondent

JUDGE: MCKERRACHER J DATE OF ORDER: 18 FEBRUARY 2016

THE COURT ORDERS THAT:

1. The applicant be granted leave to serve the Originating Application dated 5 January 2016, the Statement of Claim dated 5 January 2016 and the applicant's Genuine Steps Statement dated 5 January 2016 on the respondent in Uruguay in accordance with the law of Uruguay. 2. Costs of today be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

REVISED FROM TRANSCRIPT

MCKERRACHER J: 1 International Maritime Services Pty Ltd (ACN 096 311 189) (IMS) applies today for orders for service out. It seeks leave to serve the originating application dated 5 January 2016, a statement of claim dated 5 January 2016 and its genuine steps statement of the same date on the respondent, Lumary S.A. trading as Colonia Express, in Uruguay in accordance with the law of Uruguay. 2 The interlocutory application pertains to a dispute in which IMS seeks judgment against Lumary for approximately US$725,000, being moneys claimed to be due and payable pursuant to a contract governed by the law of Western Australia between the parties for the delivery of Lumary's vessel, Golden Blaze (the vessel), from Greece to Uruguay. IMS claims that, in fulfilment of the delivery contract, the IMS crew mobilised to Piraeus, Greece on or about 30 October 2014 to prepare the vessel for delivery. The vessel arrived at Montevideo in Uruguay on 14 January 2015, and IMS crew demobilised on 17 January 2015. IMS claims that Lumary has failed to pay IMS the last instalment of the contract sum, additional fees for the delayed delivery of the vessel and further costs and expenses incurred by IMS for the vessel's entry and stay at certain points during the delivery, in breach of the delivery contract. IMS also claims against Lumary for breach of its express and implied obligations as to the seaworthiness of the vessel, and, further or in the alternative, for misrepresentation and/or misleading and deceptive conduct in contravention of s 18 of the Australian Consumer Law. 3 The interlocutory application is supported by an affidavit sworn by a solicitor for IMS, who explains that Lumary is a corporation registered in Uruguay with its registered domicile in Montevideo. There is a deal of communication in evidence on the affidavit indicating that there have been communications with a law firm in Australia in respect of this matter since the solicitor that swore the affidavit was informed on 5 August 2015 that the firm was acting on behalf of Lumary in respect of the matter. 4 In particular, queries have been raised as to whether Lumary's solicitor had instructions to accept service, but nothing has been confirmed to indicate that such instructions had been received. The solicitor who appears before the Court today deposes to her belief that it is not likely that Lumary will soon give instructions to the solicitors to accept service. 5 The correspondence reveals a potential dispute between the parties in relation to certain matters, but that potential dispute does not detract from one of the fundamental questions which has to be resolved in a matter of this nature, namely, whether there is a prima facie case. 6 Information from IMS' lawyer in Uruguay is to the effect that the law of Uruguay will permit, and recognise as effective, personal service of process documents on Lumary according to the law of Australia. There is also information from Uruguay that it will be necessary to arrange for a notary in Uruguay to serve and certify the service of the process documents on Lumary. The proposal from IMS is that a notary attend Lumary's registered office address in Montevideo to personally serve the process documents on Lumary, such that the notary can then certify, by way of an affidavit of service, the method of service. 7 Absent statutory power, a Court will only have jurisdiction over persons physically present within the jurisdiction, or corporations physically present, at the time that the initiating process is issued, or others who, by their actions, have submitted to the general jurisdiction of the Court: Laurie v Carroll (1958) 98 CLR 310, where Dixon CJ, Williams and Webb JJ said (at 322-323): … [Turning to the question of] whether it was competent and proper to make the order for substituted service of the writ of summons. Primarily the question is one of jurisdiction. The action is in personam and it is transitory; and in such an action the jurisdiction of the Supreme Court of Victoria depends not in the least on subject matter but upon the amenability of the defendant to the writ expressing the Sovereign's command in right of the State of Victoria. The common law doctrine is that the writ does not run beyond the limits of the State. By the federal Service and Execution of Process Act 1901-1953, however, it may, if endorsed under that statute, be served elsewhere within the Commonwealth and its Territories, the conditions in which this may be done and the consequences being defined by the provisions of the Act. … For except for these extensions of the principle of the common law, it remains true that a writ issued out of the Supreme Court of Victoria does not run outside that State. And in actions in personam this must determine the jurisdiction of the court over the defendant. "The root principle of the English law about jurisdiction is that the judges stand in the place of the Sovereign in whose name they administer justice, and that therefore whoever is served with the King's writ and can be compelled consequently to submit to the decree made, is a person over whom the Courts have jurisdiction", per Viscount Haldane: John Russell & Co. Ltd. v. Cayzer, Irvine & Co. Ltd. Holmes J. regarded the principle as based upon the capacity to exert actual power. "The foundation of the jurisdiction is physical power, although in civilized times it is not necessary to maintain that power throughout proceedings properly begun, and although submission to the jurisdiction by appearance may take the place of service upon the person. … No doubt there may be some extension of the means of acquiring jurisdiction beyond service or appearance but the foundation should be borne in mind": McDonald v. Mabee. Statutory provision is in the present context through Div 10.4 of the Federal Court Rules, in turn authorised by statute. Pursuant to that Division, the leave of the Court is required for effective service of the process documents on the respondent in Uruguay by r 10.43(1)(a). 8 The application proceeds, then, by way of Div 10.04 of the Federal Court Rules 2011 (Cth). This is necessary because, absent some statutory provision or rules made pursuant to statute, rr 10.41, 10.42, 10.43 and 10.44 provide: Division 10.4—Service outside Australia 10.41 Definitions for Division 10.4 In this Division: convention, for a foreign country, means a convention (other than the Hague Convention), agreement, arrangement or treaty about service abroad of judicial documents to which the Crown in right of the Commonwealth or, if appropriate, in right of a State, and a foreign country are parties. foreign country means a country other than Australia. Hague Convention means the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965. 10.42 When originating application may be served outside Australia Subject to rule 10.43, an originating application, or an application under Part 7 of these Rules, may be served on a person in a foreign country in a proceeding that consists of, or includes, any one or more of the kinds of proceeding mentioned in the following table. Item Kind of proceeding in which originating application may be served on a person outside Australia 1 Proceeding based on a cause of action arising in Australia 2 Proceeding based on a breach of a contract in Australia 3 Proceeding in relation to a contract that: (a) is made in Australia; or (b) is made on behalf of the person to be served by or through an agent who carries on business, or is resident, in Australia; or (c) is governed by the law of the Commonwealth or of a State or Territory; in which the applicant seeks: (d) an order for the enforcement, rescission, dissolution, rectification or annulment of the contract; or (e) an order otherwise affecting the contract; or (f) an order for damages or other relief in relation to a breach of the contract