Azzi v Fox Fire Security System L.L.C.

1. [1]

   The plaintiff brings proceedings against four defendants who are located in the United Arab Emirates (UAE) claiming damages for representations alleged to have been made by them, and which were said to be false, misleading and deceptive concerning the proposed employment of the plaintiff with the first defendant. The statement of claim alleges that the first defendant made representations to him concerning the entry into a contract of employment through the agency of the second, third and fourth defendants. The second defendant was the plaintiff’s father in-law at the time, the third defendant was his mother in-law and the fourth defendant was his wife. Since the commencement of the proceedings the plaintiff and his wife have been divorced.

2. [2]

   The proceedings were served on the defendants in the UAE. Instead of serving a Form 161 pursuant to r 11.7 Uniform Civil Procedure Rules 2005 (NSW), the solicitors for the plaintiff served a notice under the Service and Execution of Process Act 1992 (Cth).

3. [3]

   The defendants by notice of motion filed 8 January 2020 now seek an order under 11.6 UCPR that the proceedings be dismissed, alternatively an order under r 14.28 UCPR that the amended statement of claim be struck out.

Background

1. [4]

   The plaintiff and the fourth defendant were married on 28 March 2004 and have two children. The plaintiff alleges that the marriage became strained in June 2016 and resulted in the plaintiff seeking a divorce in 2019.

2. [5]

   The plaintiff’s principal claim, in reliance on what is said to be s 18 of the Consumer Act (sic) and s 42 of the Fair Trading Act, is set out in paragraphs 11-17 of the amended statement of claim. The reference to the Consumer Act seems to have been intended as a reference to the Competition and Consumer Act 2010 (Cth). The reference to the Fair Trading Act was misconceived since that section was repealed by the enactment of the Fair Trading Amendment (Australian Consumer Law) Act 2010 (NSW). The provisions of s 18 of the Australian Consumer Law (which is Schedule 2 to the Competition and Consumer Act 2010 (Cth)) govern the matters formerly contained within s 42 of the Fair trading Act.

3. [6]

   Paragraphs 11 to 17 of the amended statement of claim are as follows:

4. [7]

   An alternative case was then pleaded in paragraphs 18-21 as follows:

5. [8]

   Finally, paragraphs 22-26 pleaded a cause of action based on s 21 of the Consumer Act (sic):

6. [9]

   The defendants were all jointly represented. They filed a single defence which denied the representations, and which then said:

7. [10]

   Extensive evidence from the plaintiff and all four defendants was read on the application. The plaintiff had prepared an evidentiary statement in accordance with the Practice Note and also swore an affidavit. Both of those documents included a great deal of material that was not admissible whether on an interlocutory or final basis.

8. [11]

   After the hearing of the motion commenced, I was handed extensive objections by the defendants to the plaintiff’s evidence. In the time available, it was not possible to go through all of those objections and rule upon them in advance. It was apparent, and I indicated to the parties, that a good deal of the evidence was not in admissible form. That was accepted by counsel for the plaintiff. Much of the evidence given by the plaintiff was conclusionary. Conversations were given in indirect speech and summarised. It also became apparent that not all of the evidence which was read, including many parts that were objected to, was relevant for what I had to decide on the present application. When I was taken during submissions to particular parts of the evidence to which objection was made, I then indicated how I would deal with that evidence. The matter became significant in a few areas which will be discussed later in the judgment.

9. [12]

   The evidence disclosed, and it was not disputed by the plaintiff, that on 4 December 2017 the plaintiff and the first defendant entered into a written employment contract for an unlimited term. The contract was written in both English and Arabic. It was accepted that what was written in English correctly represented the terms of the contract.

10. [13]

    The contract provided that the plaintiff was to work in the job of “office in charge” within the UAE. The term of the contract was said to commence from the date the plaintiff entered the UAE and there was to be a six month probation period. The plaintiff’s monthly wage was to be $10,000 AED which at the time of the hearing of the application was approximately AUD $3,700 per month. The contract provided for the giving of one month’s notice by either party to terminate the contract.

11. [14]

    There was in evidence in English a document entitled:

12. [15]

    There was evidence that on 10 December 2017 the plaintiff booked four flights with Etihad Airways, flying from Sydney to Abu Dhabi on 26 December 2017, from Abu Dhabi to Beirut on 9 January 2018, from Beirut to Abu Dhabi on 13 January 2018 and from Abu Dhabi to Sydney on 25 January 2018. After returning to Sydney at that time, the plaintiff did not return to the UAE. His employment was subsequently terminated.

Service outside Australia

1. [16]

   Rule 11.7 UCPR provides:

2. [17]

   The Notice in the approved form is a Form 161 which provides:

3. [18]

   As noted earlier, that Notice was not served on the defendants.

4. [19]

   Rule 11.6 provides:

5. [20]

   The first matter to determine is how this rule operates. The power given in subr (1) is wide, and is not limited to the matters set out in subr (2). If any of the matters in subr (2) are made out, the court can decide which remedy is to be provided. The matters in subr (2) are to be considered individually. The disjunctive “or” points against determinations being made on the basis of any combination of them. In that way, for example, the court is either an inappropriate forum or it is not. It does not become inappropriate because, as here, there has been a breach of r 11.7 if it was not an inappropriate forum absent such a breach. Nor does it become inappropriate depending on how poor the prospects of success are found to be. In the same way, the fact that the service was not authorised by the rules will not add anything to the consideration of the prospects of success.

6. [21]

   In the present matter, the defendants rely on each of the matters set out in sub-r (2).

7. [22]

   The reference to “these rules” in paragraph 2(a) is principally a reference to Pt 11 but may also, in certain circumstances, be a reference to the rules in Pt 10. Reference to Pt 10 is likely to be minimised either because r 11.8AC does not require personal service so long as the process is served on the person in accordance with the law of the country in which service is effected, or because a number of the rules in Pt 10 (e.g. rules 10.23 – 10.25) are specific to service within Australia. In the present case the defendants assert, and the plaintiff accepts, that service was not authorised by Pt 11 of the Rules because a notice pursuant to r 11.7 (Form 161) was not served on the defendants when the rule prescribes that such service “must” occur. The issue of what, if any, remedy under r 11.6(1) should be given will be dealt with later in this judgment.

8. [23]

   The term “inappropriate forum” is different from the expression “clearly inappropriate forum” which was held by the majority in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 as the test to be applied when a party to proceedings in an Australian forum seeks a stay of those proceedings in order to permit the same matter to be determined in a foreign forum having the necessary jurisdiction.

9. [24]

   In Regie National des Usines Renault SA & Anor v Zhang [2002] HCA 10; (2002) 187 ALR 1, the High Court considered the provisions of Pt 10 r 6A of the Supreme Court Rules 1970 (NSW) That rule was the forerunner of r 11.6 UCPR. Part 10 r 6A set out two situations, without limiting the generality of the Court’s power, where an order setting aside or staying or declining to exercise jurisdiction might be made. Those two situations corresponded with r 11.6(2)(a) and (b), with subrule (2)(b) of r 6A reading:

10. [25]

    The majority judgment said this about the expression “inappropriate forum”:

11. [26]

    It is then necessary to consider the scope of the test set out in r 11.6(2)(c). The words chosen are deliberately different from what is contained in r 13.4 and r 14.28. The comparison is, of course, with the words “no reasonable cause of action”, the test for which is accepted as being that set out General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 and the cases which have followed it.

12. [27]

    In relation to sub-r (2)(c) the defendants submit that the appropriate test is a different and wider one than the test on an application under r 13.4 for summary dismissal of the proceedings. The defendants submitted that the principles from General Steel Industries do not apply where r 11.6(2)(c) is relied upon. The plaintiff submitted that the principles from General Steel Industries apply, and that disputed questions of fact cannot be determined from conflicting affidavit evidence.

13. [28]

    In my opinion, the enquiry concerning prospects of success is a different enquiry from determining whether a reasonable cause of action is disclosed. In the first place, if it were determined that no reasonable cause of action was disclosed, a defendant would show that the claim had insufficient prospects of success to warrant putting the defendant to the time, expense and trouble of defending the proceedings. However, even if a reasonable cause of action was demonstrated, the prospects of success of that claim might not be sufficient to warrant a need for the defendant to defend that claim because of the undoubted time, expense and trouble of defending the claim.

14. [29]

    I do not consider that a balancing exercise is involved in the determination of the prospects of success. It can be accepted that the defence of a claim made by any defendant involves time, expense and trouble, and that the time, expense and trouble are likely to be significantly greater for a foreign defendant. Such a defendant would need to engage local lawyers. If the defendant came to Australia to defend the claim, there would be considerable time, expense and trouble for that person. Even if the defendant did not come to Australia, the cost of engaging those lawyers is likely to be increased because of the costs associated with communication. The need for interpreters and audio-visual links results in increased costs.

15. [30]

    Once the prospects of success have been determined, there may be some cases where the amount in question in the proceedings is sufficiently modest that, at the stage where the discretion provided in both subs (1) and (2) is to be exercised, a balancing exercise is involved. Such cases are likely to be rare.

16. [31]

    To give full effect to the words in sub-r(2)(c) it will ordinarily be necessary to examine the evidence upon which the plaintiff relies. It will ordinarily not be appropriate to resolve disputed factual matters because the assessment to be made will not involve cross-examination of witnesses. However, contemporaneous documents may be of considerable assistance in assessing the prospects of success. There may be some evidence dealing with the time, expense and trouble of defending the claim, but this is likely to be of limited usefulness, because an estimate of the costs will be difficult at such an early stage of the proceedings.

Inappropriate forum

1. [32]

   Counsel for the defendants submitted that all of the defendants were either registered in or reside in the UAE. In particular, the first defendant had no connection with Australia at all, having no offices, staff, assets or business undertakings in Australia and deriving no revenue in Australia. Counsel submitted that all relevant witnesses save for the plaintiff resided in the UAE and that the defendants would be put to great expense to continue to engage Australian solicitors and counsel and to travel to Australia for the hearing.

2. [33]

   Counsel submitted that the substance of the claim, although not pleaded by the plaintiff, is that there is an alleged breach of contract by the first defendant. Counsel submitted that that contract is governed by UAE labour law. Further, any loss for the breach of that contract occurred in the UAE. Counsel submitted that expense would be incurred by having to retain an expert in UAE labour law. If, as the plaintiff suggested, evidence could be given by AVL from the UAE, there would need to be interpreters at either end which would be added expense.

3. [34]

   The plaintiff submitted that the pleaded cause of action, as opposed to the claim which the defendants say ought to have been brought, is a claim based on a breach of s 18 of the Australian Consumer Law. In that regard, the plaintiff submitted that the representations were received and relied upon by the plaintiff in New South Wales. Any damage sustained by the plaintiff as claimed was sustained in New South Wales. In that way, the plaintiff submitted that the cause of action based on s 18 of the Australian Consumer Law arose in New South Wales.

4. [35]

   Associated with that, the plaintiff submitted that the plaintiff would be deprived of a significant juridical advantage if the proceedings were not heard and determined in New South Wales. That is because there is no corresponding right in the UAE to make a claim such as s 18 allows.

5. [36]

   The plaintiff submitted that the matter of witnesses giving evidence could be dealt with by AVL and that would ameliorate any inconvenience and oppression arising from those witnesses having to come to Australia.

Determination

1. [37]

   The High Court made clear in Regie that the ultimate consideration is the prevention of injustice. In Henry v Henry (1996) 185 CLR 571 at 576 the High Court reiterated that the test is that a stay should be granted if continuation of the proceedings in the Local Court would be oppressive in the sense of being “seriously and unfairly burdensome, prejudicial or damaging”, or vexatious, in the sense of “productive of serious and unjustified trouble and harassment”. It is also necessary to consider “connecting factors” and whether there is “a legitimate personal or juridical advantage” in the proceedings remaining in the court where they commenced. A material consideration is whether it is fairly arguable that the substantive law of the forum is the lex causae.

2. [38]

   The claims as pleaded invoke ss 18 and 21 of the Australian Consumer Law. On the balance of probabilities, the causes of action pleaded arose in New South Wales inasmuch as the representations were received in New South Wales and acted upon to the plaintiff’s detriment. Nor, on the pleaded claim, would evidence need to be given about UAE labour law. It is no answer to those matters for the defendants to assert that the claim amounts to, or should be, a claim for breach of contract.

3. [39]

   Where the lex causae for the claim would be Australian law and where the cause of action arose in Australia, it cannot be said that proceedings in this Court were brought in an inappropriate forum. I note also that it was accepted in O’Reilly v Western Sussex Hospitals NHS Trust [2010] NSWSC 909 at [39]-[40] that, even if foreign law is to be applied, that will not necessarily mean that the local court is an inappropriate forum: see also Puttick v Tenon Ltd (2008) 238 CLR 265; [2008] HCA 54 at [2] and [49].

Prospects of success

1. [40]

   The majority of the time at the hearing was taken up with this aspect of the matter. That was not surprising because, as I have said, it is necessary to examine the plaintiff’s evidence and contemporaneous documents which might help to clarify what would otherwise be conflicting matters of fact as a result of evidence filed by the defendants.

2. [41]

   The principal allegation is found in paragraph 11 of the amended statement of claim. For ease of reference I will set out that paragraph again as follows:

3. [42]

   Paragraph 14 then alleges that the plaintiff, acting in reliance on the first defendant’s representations, did the following things:

4. [43]

   Significantly, the plaintiff does not plead that, acting in reliance on the representations, he entered into a contact of employment with the first defendant, as he now acknowledges that he did.

5. [44]

   Paragraph 15 pleads that the representations by the first defendant were false, misleading and deceptive and were made in trade or commerce because:

6. [45]

   The evidence in support of the claim against the first defendant, which is said to involve the second defendant, is chiefly to be found in paragraph 21 of the plaintiff’s evidentiary statement. That paragraph relevantly says:

7. [46]

   The defendants objected to the quoted sentence on the basis of its form. In my opinion, the evidence is inadmissible in that form. It is a summary in indirect speech of what was supposed to have been said, and it suffers from the further vice that it was said to have been made “prior to and on 4 December 2017”.

8. [47]

   The documents said to support the job offer by the second defendant as an employee of the first defendant are as follows.

9. [48]

   The first group of documents consisted of an email from Waleed Al Kashef Abdel Aleem who is a human resources officer employed by the first defendant. The email, apart from the email addresses, was in Arabic, but the plaintiff has translated it as saying, relevantly, “Please find attached the job offer related to you”, and asking him to sign it and return it so the company could issue the work permit for him.

10. [49]

    The second group of documents consisted of emails between the plaintiff and Mr Waleed, where the plaintiff asked Mr Waleed to correct his name in Arabic on the job offer. Mr Waleed said he would do that. On 5 December 2017 he sent him a revised document with the plaintiff’s name adjusted. The plaintiff then signed the contract and returned it to Mr Waleed on 5 December 2017 at 1:09am.

11. [50]

    The plaintiff seems to have believed that the second defendant was employed by the first defendant partly because he asserts, in inadmissible form in paragraph 20 of his evidentiary statement, that the second defendant had said that he was employed by both Asfar Hotels and the first defendant. He also seems to have formed that view because he believed that the second defendant had two email addresses being george.samia@asfarhotels.com and georges@foxfiress.ae. In fact, that second email address did not belong to the second defendant at all but to Georges Mikel El Hajj who was the general manager of the first defendant and who swore the affidavits on behalf of the first defendant in these proceedings.

12. [51]

    The plaintiff also pointed to the fact that the second defendant was copied into emails he received from Mr Waleed as evidencing a holding out by the first defendant of the second defendant to make representations on its behalf.

13. [52]

    Statements by the second defendant that he was employed by the first defendant could not amount to a holding out by the first defendant of that fact. Further, the inclusion of the second defendant in emails is demonstrated on the evidence to have been because the second defendant was assisting the plaintiff in relation to the forwarding of documentation to obtain a visa and work permit in the UAE.

14. [53]

    However, none of those matters is ultimately relevant because, as the plaintiff now accepts, he entered into a contract with the first defendant for employment. The terms of that contract are clear. It is contained in the signed form of the agreement which the plaintiff has annexed to his evidentiary statement. Further, the plaintiff obtained a residency visa enabling him to work in Abu Dhabi and for him and his family to emigrate to the UAE. In that way, the plaintiff fails to establish that the representations were misleading and deceptive or false.

15. [54]

    The plaintiff’s real complaint, as it appears in paragraph 15 of the amended statement of claim, is that there was no work available for him, despite his having executed a contract of employment. He does not, however, assert that the contract he entered into was a sham.

16. [55]

    The evidence put forward by the plaintiff in relation to the absence of a job was first contained in paragraphs 29 and 30 of his evidentiary statement. In paragraph 29 the plaintiff made reference to signing a rental agreement on 25 January 2018. He said that “According to Abu Dhabi law I was required to hand over four post-dated cheques.” He said he did so. He then went on to say in paragraph 30:

17. [56]

    All of that evidence was objected to by counsel for the defendants. The evidence is inadmissible by reason of its form and the fact that it contained conclusions and beliefs only.

18. [57]

    In similar fashion, the following evidence was given in the plaintiff’s affidavit sworn 25 February 2020. In paragraph 13 he said:

19. [58]

    Except for the words “I never commenced employment”, all of that evidence was objected to by counsel for the defendants, and it is in inadmissible form.

20. [59]

    Even if that evidence was admissible, all it would show was that there had been a breach by the first defendant of its obligations under the contract of employment it entered into with the plaintiff. The plaintiff does not make any claim in that regard against the first defendant.

21. [60]

    In relation to the reason the plaintiff left the UAE on 25 January 2018, I note that the e-ticket with Etihad Airways purchased by the plaintiff on 10 December 2017 in Sydney (paragraph [15] above) included a return flight from Abu Dhabi to Sydney on 25 January 2018. It did not include a flight back from Sydney to Abu Dhabi in order to take up the job that was the subject of the contract of employment. Since the plaintiff had entered into a contract of employment almost a week prior to the purchase of this ticket, I would have expected an explanation from the plaintiff about why no return flight to the UAE had been booked. His reason for leaving the UAE was that he was concerned that he had given the post-dated cheques and might be prosecuted. However, he had already booked the flight back to Sydney before giving the post-dated cheques.

22. [61]

    In my opinion, the plaintiff has poor prospects of success on the claim under s 18 of the ACL against the first and second defendants. The representation was that he would be given a job, a work permit and a visa in the UAE. On his own evidence, he obtained all three.

23. [62]

    The plaintiff makes a further claim in relation to the representations. This claim is to be found in paragraphs 18-21 of the amended statement of claim. The claim appears to be based on an agreement which predates the contract of employment between the plaintiff and the first defendant. So much is evident from paragraph 19(a) and the first part of paragraph 20. The representations are said to have been made pursuant to this earlier agreement. In that way, they must have been made subsequent to the earlier agreement and prior to the contract of employment.

24. [63]

    Although the pleading sets out what are said to be express terms, alternatively, an implied term, it does not plead any breach of those terms. The evidence also shows clearly that the plaintiff obtained a work permit to work with the first defendant which enabled him to move to Abu Dhabi, and he obtained a contract of employment with the first defendant.

25. [64]

    Further, the evidence shows that the documents, emails and correspondence, as well as the telephone discussions and texts, all concerned the same matters that formed the basis of the principal claim dealt with above. Those documents and discussions do not demonstrate that any agreement was made prior to the execution of the contract of employment. Rather, they show steps along the way to securing the contract, which was ultimately signed by the plaintiff, and the work permit and visa which was ultimately issued by the government of the UAE.

26. [65]

    In my opinion, the claim made in these paragraphs does not disclose a reasonable cause of action judged by the principles from General Steel Industries. Where no reasonable cause of action is disclosed when considered in terms of the principles in General Steel Industries, the conclusion must be that the prospects of success on this claim are non-existent.

27. [66]

    The plaintiff pleads a further cause of action which is said to be based on unconscionability in equity as well as in contravention of s 21 of the ACL. Damages are claimed only by reason of the breach of s 21. The pleading of this claim is set out at [8] above.

28. [67]

    It may be seen from this pleading that the basis for this claim is, what is here called “the Assumption”, that the plaintiff would be given a contract of employment with the first defendant and a residency visa. This is the same claim made in a different form to the earlier causes of action discussed. The claim is made only against the first defendant.

29. [68]

    There are a number of problems with the cause of action. The first problem is that, whatever the second defendant is supposed to have done, he was not the manager of the first defendant and, for reasons earlier given, there is no evidence that the first defendant held the second defendant out as an employee or agent.

30. [69]

    Secondly, when the plaintiff obtained a contract of employment and a work permit and visa, it is difficult to see where there is any unconscionability. The only implied wrongdoing, assuming the plaintiff pleaded it and led admissible evidence of it, is a breach of contract by the first defendant. Even if that was proved, it would not amount to unconscionable conduct. However, such a claim is not pleaded.

31. [70]

    Thirdly, as the plaintiff now accepts, the matters said to constitute the Assumption have come to pass; that is, the plaintiff was given a contract of employment with the first defendant and a residency visa with appropriate entitlements to reside in Abu Dhabi. In that way, it cannot be said (as paragraph 24 of the amended statement of claim implies) that the first defendant has departed from the Assumption. Nor does the plaintiff plead any actual departure from the Assumption on the first defendant’s part. He does plead that the first defendant engaged in unconscionable conduct “in the manner in which it contracted with the Plaintiff” without specifying how. Where the whole of this cause of action is dependent on the first defendant departing from the Assumption, and where the evidence shows that the Assumption has not been departed from, the plaintiff fails to demonstrate a reasonable cause of action.

32. [71]

    Fourthly, where unconscionable conduct is asserted, ordinarily one would expect to see unethical conduct. In Director of Consumer Affairs Victoria v Scully [2013] VSCA 292, Santamaria JA (with whom Neave and Osborn JJA agreed) said:

33. [72]

    The evidence discloses that, not only did the first defendant enter into the employment contract with the plaintiff, it also sponsored him and his family so that they could reside in the UAE.

34. [73]

    The plaintiff does not identify any unethical conduct or behaviour on the part of the first defendant, nor does he show that the transaction (the entry into the contract of employment and the obtaining of the entry permit and visa) was morally tainted in any way.

35. [74]

    In my opinion, the plaintiff’s prospects of success on this third claim are between very poor and negligible.

36. [75]

    The claim against the third defendant, at least on the first claim in paragraphs 11 to 17 in the Amended Statement of Claim, is confined to an allegation that the third defendant supported the second defendant. That may be seen from the terms of paragraph 11 of the amended statement of claim and from the opening words of paragraph 14 which say:

37. [76]

    Section 236 of the ACL enables a claim to be made against “any person involved” in a contravention of a provision of Ch 2 or Ch 3. Section 2 defines “involved” in this way:

38. [77]

    The amended statement of claim does not allege that the third or fourth defendants were persons involved in the contravention, nor does it allege any of the matters set out in the definition of “involved”. The phrase “with support from”, employed by the plaintiff in his pleading, has no legal meaning. To the extent that the cause of causes of action against the third and fourth defendants are those pleaded in paragraphs 11-17 of the amended statement of claim, they do not disclose any reasonable cause of action against the third and fourth defendants.

39. [78]

    Even if one has regard to the evidence, the plaintiff’s evidentiary statement only mentions the third defendant in two contexts. First, at paragraphs 28 and 29, the plaintiff gives evidence that the third defendant introduced him to an estate agent and helped him and his family to find somewhere to live. Secondly, at paragraphs 28 and 34 the plaintiff said that the third defendant spoke to him about what the second defendant had done. In paragraph 28 the following appears:

40. [79]

    The sentence was correctly objected to by counsel for the defendant as being in inadmissible form. However, even if it was admitted, that statement cannot be evidence supporting the representation pleaded in paragraph 11 of the amended statement of claim, because by the time of the plaintiff’s arrival in Abu Dhabi he had entered into the contract of employment. Further, by that time, the plaintiff had already left Australia and moved to Abu Dhabi. Any reliance by him must have been on a representation which pre-dated what the third defendant said.

41. [80]

    In paragraph 34, the plaintiff said this:

42. [81]

    That sentence was also correctly objected to by counsel for the defendants. It is not located in time. It is conclusionary in asserting that they “assisted” without setting out the facts. Finally, as had been observed more than once above, the plaintiff had entered into a contract of employment which he does not assert was a sham.

43. [82]

    In his affidavit of 25 February 2020, the plaintiff in paragraph 26 responded to the third defendant’s evidence that she had no connection with the first defendant. He said:

44. [83]

    It seems likely that the conversation is the same one as is dealt with at [##73] above. I have set out above the problems with any such representation forming the basis of a claim with any prospects of success.

45. [84]

    The plaintiff’s prospects of success against the third defendant on the first claim are negligible.

46. [85]

    The third defendant is also mentioned in paragraph 18 of the amended statement of claim in relation to the second claim. Her involvement is said to derive from “discussions” between her and the plaintiff from December 2016 to November 2017.

47. [86]

    I have set out at [78], [80] and [82] above the sole references to the Third Defendant in the plaintiff’s evidence. The occasions referred to at [78] and [82] above cannot be the evidence for this second claim because they post-date November 2017. That leaves only what is referred to at [80] above. The difficulties I have discussed at [63]-[65] and [80] above mean that this claim has negligible prospects of success.

48. [87]

    Further claims are made against the fourth defendant. Those claims are set out in paragraphs 12, 13 and 16 of the amended statement of claim.

49. [88]

    It may be noted that these representations are pleaded separately from representations concerning the provision of a contract of employment to the plaintiff. They refer to the obtaining of a job by the fourth defendant with Etihad Airlines in Abu Dhabi.

50. [89]

    The evidence in support of this part of the claim is to be found in paragraphs 16-18 of the plaintiff’s evidentiary statement as follows:

51. [90]

    Putting aside the fact that some of that material is in inadmissible form, the significant matter is that, whereas the allegations in paragraphs 12 and 13 of the amended statement of claim were that there was employment for the fourth defendant with Etihad Airlines, the material in the evidentiary statement does not go that far. Paragraph 17 only has the first defendant saying she was “hoping to get a position” and “she was confident she would have a job offered to her”. It seems the fourth defendant’s sister had been able to assist her in the past, and that led the plaintiff to the conclusion that a job was secured for the fourth defendant with Etihad in Abu Dhabi. His belief is not supported by the evidence he puts forward.

52. [91]

    In any event, nowhere does the plaintiff plead any reliance on these representations of the fourth defendant.

53. [92]

    The further difficulty for the plaintiff for the cause of action against the fourth defendant is identifying how the representations were made in trade and commerce. The representations in paragraph 16, alleged to have been made by the fourth defendant, are unrelated on their face to any offer of employment by the first defendant to the plaintiff. They concern personal matters between the plaintiff and the fourth defendant. In no sense could the plaintiff be said to be a consumer in relation to the fourth defendant. The representations fall outside what constitute acting in trade and commerce: Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; [1990] HCA 17 at 603-604; Murphy v Victoria [2014] VSCA 238; (2014) 313 ALR 546 at [91]-[92]; Taylor v Crossman (No 2) [2012] FCAFC 11 at [39]-[47].

54. [93]

    In my opinion, the prospects of success of this claim against the fourth defendant are poor.

55. [94]

    To the extent that the fourth defendant is said to be involved in the claim set out at paragraphs 18 to 21 of the amended statement of claim, I have already held that the pleading does not disclose a reasonable cause of action, and that the claim has no prospects of success.

Remedy

1. [95]

   The plaintiff did not comply with r 11.7 UCPR. In that way, the service on the defendants was not authorised by the rules. I do not consider in the present case that such non-compliance should result in any order under r 11.6. The defendants are represented by local lawyers, and fully apprised of their rights as foreign defendants, including making the present application. That is what the Form 161 notifies them about. It is true that clause 2 of the Form 161 requires the specification of the grounds alleged by the plaintiff to support his claim to be entitled to serve the defendants outside Australia. However, the defendants do not claim to be prejudiced by that omission. If that was the only basis for the present application, I would not make any order under the rule.

2. [96]

   I have determined that the prospects of success of the various claims against the various defendants range from no prospects to poor prospects, with most claims having negligible prospects. On that assessment, the discretion given by the rule arises because the claims have insufficient prospects of success.

3. [97]

   This case involves a foreign company with no connection to Australia. It involves three defendants, two of whom only appear to have a connection to Australia by virtue of their daughter marrying the plaintiff. The fourth defendant, lives permanently in the UAE. On the basis of the evidence adduced at the hearing of the present application, a hearing in Australia with all witnesses present here will take a minimum of three days, and probably more. If, as seems more likely, a number of witnesses give evidence by AVL from the UAE, the hearing will take longer. It was suggested that there will be a need for interpreters, although I note that all the affidavits relied upon in the present application were sworn in English. I can envisage, however, that the defendants may need to call employees from the first defendant, apart from Mr El Hajj who, as the General Manager of the first defendant, gave evidence on this application about other employees’ involvement.

4. [98]

   In my opinion, the prospects of success are insufficient to warrant putting the defendants to the time, expense and trouble of defending the claim. In those circumstances, the proceedings should be dismissed. No purpose would be served by merely staying them. Such an order might be appropriate if the court was an inappropriate forum.

5. [99]

   Accordingly, I make the following orders:

   1. (1)

      Proceedings dismissed.

   2. (2)

      The plaintiff is to pay the defendants’ costs.