ACN 117 641 004 Pty Ltd (in liquidation) (formerly Vale Pty Ltd) v S& P Global, Inc [2020] FCA 1745

FEDERAL COURT OF AUSTRALIA

ACN 117 641 004 Pty Ltd (in liquidation) (formerly Vale Pty Ltd) v S&P Global, Inc [2020] FCA 1745 File number(s): NSD 881 of 2020

Judgment of: RARES J

Date of judgment: 27 November 2020

Catchwords: PRACTICE AND PROCEDURE – application for service out of the jurisdiction under r 10.43 of the Federal Court Rules – whether prima facie case for relief against respondents to be served in the United States of America established by evidence led by one or both applicants in group proceeding under Pt IVA of the Federal Court of Australia Act 1976 (Cth) – where applicants pleaded respondents had contravened s 1041F of the Corporations Act 2001 (Cth) and committed the tort of deceit – where pleaded loss and damage said to have occurred in Australia – where respondents allegedly represented that ratings assigned to certain financial products were accurate and independent – whether inferences could be drawn to establish prima facie case of reliance by applicant on representations of the respondents – where representations were made by ratings agencies outside Australia in circumstances where natural and probable result was republication of ratings in Australia – determination whether publication for purposes of s 1041F and the tort of deceit occurred in Australia – Held: prima facie case established and leave for service out of the jurisdiction granted

Legislation: Corporations Act 2001 (Cth) ss 1041F, 1041G, 1325 Federal Court of Australia Act 1976 (Cth) Pt IVA, ss 33H, 33V, 51A Federal Court Rules 2011 Limitation of Actions Act 1936 (SA) Limitations Act 2005 (WA) s 38