Nitro Circus Touring Australia Pty Ltd –v- Ilaria Lenzoni

HIS HONOUR: “Nitro Circus Moto Mayhem” is, I understand, a live action sports show, the rights in which are owned by the plaintiff, Nitro Circus Touring Australia Pty Ltd (ACN 138 969 776).

By written agreement dated 8 December 2014, the plaintiff granted to the defendant, Ilaria Lenzoni the right to promote and present the show. The defendant agreed to present it on 21 June 2015, at Turin Palaolympico, in Turin, Italy, for which privilege the defendant agreed to pay the plaintiff USD $300,000. In breach of this agreement, she paid only USD $55,000.

Clause 27 of the agreement provided that it is governed by and to be construed in accordance with the laws of New South Wales and the parties submit to the non-exclusive jurisdiction of this State.

Consequently, by Summons and Commercial List Statement issued on 4 September 2015, the plaintiff sued the defendant for USD $245,000 (or alternatively damages) as well as interest and costs.

The defendant resides in Italy. As will appear below, the evidence establishes that she received the initiating process on 26 October 2015 by registered post in that country.

By Notice of Motion filed 9 February 2016, the plaintiff moves for default judgment against the defendant in the sum of USD $254,718.52 (which includes interest) and costs of AUD $5,223.00.

The defendant has not filed any appearance. The issue is whether she was validly served with the process so as to entitle the plaintiff to the orders which it seeks.

Part 11A of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) concerns service under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965 (“the Hague Convention”), to which Australia acceded on 15 March 2010 and which entered into force in this country on 1 November 2010.

The Hague Convention recites that the signatory States’ desire to create a means to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time. By it, each Contracting State agrees to designate a Central Authority which will undertake to receive requests for service coming from other Contracting States, to organise the Central Authority in conformity with its own law and to proceed in conformity with Arts 3–6. Those Articles are in the following terms:

Division 2 of Pt 11A of the UCPR is entitled Service Abroad of Local Judicial Documents and by r 11A.3(1), relevantly applies to service in a Convention country of a local judicial document.

Italy is a Convention country.

Rule 11A.4(1) of the UCPR (read with r 11A.1) provides that a person may apply to the Principal Registrar of the Court, in the Registrar’s capacity as a forwarding authority, for a request for service in a Convention country of a local judicial document. Rule 11A.4(2) provides that the application must be accompanied by various documents including a draft request for service abroad, which must be in the approved form. Rule 11A.5(1) provides that if satisfied that the application and its accompanying documents comply with r 11A.4, the Registrar must sign the request for service abroad and forward two copies of the relevant documents to the Central Authority for the Convention country in which service of the document is to be effected.

Rules 11A.6(1), (2) and (3) of the UCPR provide:

Rule 11A.8 of the UCPR provides, relevantly, that a certificate of service is, in the absence of evidence to the contrary, sufficient proof that service of the document was effected by the method specified in the certificate on that date.

Rule 11A.10 UCPR provides:

Section 17 of the Civil Procedure Act 2005 (NSW) (“CPA”) provides:

On 9 September 2015, the plaintiff applied to the Principal Registrar of the Court under r 11A.4 of the UCPR for a request for service in Italy of the Summons and Commercial List Statement (which had been filed on 4 September 2015). On 10 September 2015, the Registry notified the plaintiff that a request for service together with the appropriate documents had been forwarded to the Authority Office in Rome, Italy for service.

There is in evidence a print out of an internet website which, on its face, identifies that Office as being the Central Authority for service under what it refers to as the Service Convention. I am satisfied that this is a reference to the Central Authority contemplated in Art 5 of the Hague Convention. I would in any event be prepared to infer that this is the Central Authority from the fact that it is the Office to which the Principal Registrar, acting pursuant to the rules intended to give effect to the Hague Convention, sent the documents. It is also the Office which responded to the request consistently (as will appear below) with the expectations of the Hague Convention.

The plaintiff’s application was in the form approved by the Uniform Rules Committee and available for public inspection at the registry of the Court and on the Court’s internet website (contemplated by s 17 of the CPA). The form is in two parts. Part 1 is entitled ‘Request for Service Abroad’ and contains provision for the documents to be listed. Part 2 is a Certificate by which the Central Authority of the State addressed certifies that service has been effected. It is in the following form:

The Summons was first returned in the Court on 6 November 2015 before me. Mr J Dooley of Counsel appeared for the plaintiff. A solicitor, Mr Lim, purported to appear on the defendant’s behalf on the first return.

Part 6 Div 3 r 6.9(1) of the UCPR provides “A defendant may enter an appearance in proceedings by filing a notice of appearance”.

The evidence establishes that there was a conversation between Mr Dooley and Mr Lim during which Mr Lim told Mr Dooley that he had been instructed only the night before to appear for the defendant on the return of the Summons and had been instructed to seek to have the matter stood over to 4 December 2015, to allow time to receive proper instructions from the defendant.

The plaintiff was content for the matter to be adjourned and I stood it over to 4 December 2015. On 4 December 2015, there was no appearance (purported or otherwise) for the defendant. I stood the matter over to 12 February 2016 and granted the plaintiff leave to make an application for default judgment returnable on that day.

The evidence establishes that on 16 November 2015, the plaintiff’s solicitors wrote to the lawyers who had previously represented the defendant, enquiring whether they had filed a Notice of Appearance and asking whether they continued to act for her. No reply was received.

No notice of appearance was, or ever has been, filed by the defendant. She never filed a notice of address for service. Accordingly, she has not appeared as contemplated by the UCPR.

On 27 November 2015, the Principal Registrar wrote to the plaintiff’s solicitors, forwarding a copy of a letter from the Court of Lucca, and other associated documents for their information. The enclosed documents included documents in the Italian language, certified translations of which have been provided. One of the documents is an “Acknowledgement of Receipt” (“the Acknowledgement”). Its contents include the following:

The Acknowledgement is clearly intended to constitute a certificate of service but, as can be observed, it is not in the approved form.

However, s 80 of the Interpretation Act 1987 (NSW) provides:

Thus, the Acknowledgement will suffice as a certificate of service for the purposes of r 11A.10 of the UCPR if it constitutes “substantial compliance” with the approved form.

Substantial compliance is a matter of degree and concerns the practical effect of what has been done, compared with the practical effect the relevant provision which has not been complied with seeks to achieve; Re Asset Risk Management Ltd (1995) 59 FCR 254; Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331 at 338; Deputy Commissioner of Taxation (Cth) v Comcorp Australia Ltd (1996) 21 ACSR 590 at 627–628.

The approved form is the certificate of service contemplated by Art 6 of the Hague Convention. That Article requires the certificate to state that the document has been served, where it was served, when it was served and the person to whom the document was delivered. The Acknowledgement meets each of the substantive requirements which the approved form imposes: it is a certificate from the Central Authority; it identifies the recipient; it states the date of service; it identifies the place of service; and it describes the method of service.

The Acknowledgement diverges from the approved form in that it does not identify the served documents by listing them. On one view however, it does better, identifying them by attaching them. The evidence establishes that the documents attached included the Summons, Commercial List Statement and a summary of the documents to be served.

Thus, although the form of the Acknowledgement diverges from the approved form, the practical effect of what was done is no different to the practical effect of what r 11A.6 of the UCPR, seen in the context of Art 6 of the Hague Convention, seeks to achieve. The Acknowledgement is substantial compliance with the approved form.

Rule 11A.10(2) of the UCPR requires the Court to be satisfied that the initiating process was served on the defendant either by 1) a method of service prescribed by the internal law of the Convention country for the service of documents in domestic proceedings on persons who are within its territory, or 2) in accordance with a particular method, compatible with the law in force in that country, as requested by the applicant (the plaintiff). No particular method of service was requested by the plaintiff. There is sufficient material to be satisfied that the defendant was served by a method prescribed by the internal law of Italy.

I am prepared to infer that the internal law of Italy is consistent with the Hague Convention recognising that service may be effected where it is accepted voluntarily. Additionally, the internet website of the Central Authority referred to above identifies that service can be executed “by postal service according to law n.890/1982”. Finally, the Acknowledgement states that the process was delivered “by mail under law 890 of 20/11/82” which I am prepared to infer is a statement that mail delivery is valid service.

In any event, Art 5 of the Hague Convention provides that the document may always be served by delivery to an addressee who accepts it voluntarily. That is what occurred here. The fact that the recipient acknowledged receipt satisfies me that it was accepted voluntarily as contemplated by Art 5 of the Hague Convention. Although no notice of appearance was filed by the defendant, she plainly had notice of the proceedings because a legal practitioner purported to appear on her behalf on the first return. There was no suggestion that she had not been served.

It follows that I am satisfied that the initiating process was validly served on the defendant on 26 October 2015.

The plaintiff’s entitlement to be paid the sum owing under the agreement, and legal costs of AUD $5,223.00, is established by the Affidavit of its Senior Business Affairs Manager, Stephen Rogers, sworn 8 February 2016 and which has been read on the application.

It having been established that service occurred on 26 October 2015, the 42 day period specified in r 11A.10(3)(a) of the UCPR had elapsed by 7 December 2015.

In the circumstances, the plaintiff is entitled to default judgment as prayed. I accordingly make the following orders: