Commissioner of Taxation v Ma [1999] FCA 1093

Commissioner of Taxation v Ma [1999] FCA 1093

Because the proceeding was founded on a cause of action arising in the Commonwealth, the Commissioner had a prima facie case, and the first and third respondents appeared to be in China, it was appropriate to grant leave under Order 8 to serve outside the Commonwealth and to permit notice outside the Commonwealth in the specified manner to take the place of service. The Court was not satisfied that adequate steps had been taken to justify special service orders for the second respondent.

Jurisdiction
Australia
Judgment Date
29 July 1999
Procedural Posture
Practice and Procedure Application Concerning Service of Originating Process Outside Australia in Taxation Related Proceedings / Notice of Motion for Orders Relating to Service of the Amended Application and Further Amended Application
Outcome
Leave granted to serve the first and third respondents outside the Commonwealth on specified conditions, and leave granted to give notice outside the Commonwealth on the basis that notice takes the place of serving the originating process; no special service order made for the second respondent.
Legal Topics
['service of Originating Process' 'service Outside Australia' 'substituted Service' 'non Convention Country Service' 'giving Notice Outside the Commonwealth in Place of Service' 'mareva Orders']
['practice and Procedure' 'taxation'] ['service of Originating Process' 'service Outside Australia' 'substituted Service' 'non Convention Country Service' 'giving Notice Outside the Commonwealth in Place of Service' 'mareva Orders']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 1 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Practice and Procedure Application Concerning Service of Originating Process Outside Australia in Taxation Related Proceedings / Notice of Motion for Orders Relating to Service of the Amended Application and Further Amended Application

Legal Issues

  1. 1 ["Whether leave should be granted to serve the proceedings outside the Commonwealth on the first and third respondents in the People's Republic of China." 'Whether an order for substituted service under Order 7 rule 9 should be considered where no prior leave has been obtained to serve outside the jurisdiction.' 'Whether service outside Australia could be permitted without complying with the Division 3 procedure for service in a non-Convention country.' 'Whether the applicant should be given leave to give notice outside the Commonwealth on the basis that notice takes the place of serving the originating process.' 'Whether special service orders should be made in relation to the second respondent.']

Ratio Decidendi

Because the proceeding was founded on a cause of action arising in the Commonwealth, the Commissioner had a prima facie case, and the first and third respondents appeared to be in China, it was appropriate to grant leave under Order 8 to serve outside the Commonwealth and to permit notice outside the Commonwealth in the specified manner to take the place of service. The Court was not satisfied that adequate steps had been taken to justify special service orders for the second respondent.

Court Disposition

Leave granted to serve the first and third respondents outside the Commonwealth on specified conditions, and leave granted to give notice outside the Commonwealth on the basis that notice takes the place of serving the originating process; no special service order made for the second respondent.

Orders

  • ['The Applicant be granted leave under Order 8 rule 2(2) of the Federal Court Rules to serve the documents set out in Schedule A outside the Commonwealth upon the First and Third Respondents on condition that the Applicant serve the Documents on Messrs Holman Webb Solicitors, notify the First and Third Respondents...