Hellyer Gold Mines Pty Ltd v Johnston and Bengal Bay Capital Pte Ltd

This was an application decided on the papers for leave to serve a claim and statement of claim on overseas defendants under r 129C Uniform Civil Procedure Rules 1999, which requires that a document other than an “originating process” be served outside Australia with leave of the Court. The application turned on whether the claim and statement of claim fell within the meaning of an “originating process”. Davis J ultimately held that a claim and attached statement of claim is an “originating process”. Accordingly, the applicant did not require leave to serve the claim and statement of claim outside Australia, provided one of the sub-rules in r 125 is engaged. His Honour accordingly dismissed the application as the relief sought was unnecessary.

Davis J

4 June 2024

The plaintiff sought orders pursuant to r 129C Uniform Civil Procedure Rules 1999 (“UCPR”) that it have leave to effect service of its claim and statement of claim upon the first defendant, Mr Johnston, in Indonesia and the second defendant, Bengal Bay Capital Pte Ltd (Bengal Bay) in Singapore. [1].

The first defendant, Mr Johnston, was director and sole shareholder of Bengal Bay. He was also a director of the plaintiff company. The plaintiff and Bengal Bay executed an agreement, under which Bengal Bay agreed to provide certain services to the plaintiff through Mr Johnston for remuneration (“Agreement”). [7]–[8].

The plaintiff filed a claim and statement of claim seeking various forms of relief against Mr Johnston under the Agreement. [10]–[11].

Rule 129C UCPR relevantly provides:

“129CService of other documents outside Australia

(1)A document other than an originating process may be served outside Australia with the leave of the court.”

By contrast, r 125 UCPR provides that “[a]n originating process may be served outside Australia without leave” (emphasis added) in circumstances specified in that rule.

Justice Davis considered that r 125 UCPR concerned the service outside Australia of “an originating process”, which his Honour considered to be a document that is either a claim or an application, with a “claim” being the document which complies with the requirements of r 22 UCPR. His Honour accordingly held that the “originating process” referred to in r 125 is the “claim” which consists in part of the “attached” statement of claim and as such, if the claim “with the statement of claim attached” concerns a matter prescribed in r 125, then the claim and statement of claim may be served without leave. [35].

His Honour held that provided one of the circumstances in r 125 exists, the claim with the statement of claim attached may be served on the defendants in Indonesia and Singapore, respectively, without the Court’s leave. [43]. In obiter, his Honour considered that “on its face rr 125(c), (j) and (n) probably apply in relation to Bengal Bay and rr 125(j), (l) and (n) probably apply as regards Mr Johnston”, but this was unnecessary to determine. [15].

As such, because the relief sought by the plaintiff was unnecessary, Davis J dismissed the application and made no order as to costs. [43]–[45].

A Lukacs