KEYWORDS: ORDERS FOR PRE-TRIAL DISCOVERY AGAINST FOREIGN
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.
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
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
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).
White J granted Cook leave. Cook's application satisfied the
requirements of rules 10.42 and 10.43 of the Federal Court Rules
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
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.
Solicitors should think carefully before disclosing sensitive information to experts in a letter of instruction.
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