FEDERAL COURT OF AUSTRALIA

Director of Fair Work Building Industry Inspectorate v Mamudi [2016] FCA 146

ORDERS

THE COURT ORDERS THAT:

1.    Substituted service under r 10.24(a) of the Federal Court Rules 2011 (Cth) be executed upon the tenth respondent by:

(a)    sending a copy of each of the originating application and statement of claim for WAD 724 of 2015 in an email addressed to the tenth respondent at derekliverpooljones@hotmail.com; and

(b)    sending the text message set out below to mobile number 0420 768 848:

Dear Mr Jones,

Proceeding WAD 724 of 2015 has been commenced against you in the Federal Court of Australia by the Director of the Fair Work Building Industry Inspectorate alleging contraventions of the Fair Work Act 2009 (Cth). It has been ordered by the Federal Court of Australia that service of the Originating Application and Statement of Claim in the proceeding be effected on you by this notice. If you wish to defend this action, you must file a defence with the Federal Court of Australia within 28 days of this notice. A copy of the Originating Application and Statement of Claim can be provided to you upon your request by calling (08) 9426 8275. If you fail to file a defence then judgment may be entered against you.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SIOPIS J:

1    The applicant seeks an order pursuant to r 10.24 of the Federal Court Rules 2011 (the Rules) for substituted service of the originating application and statement of claim (the Originating Documents) on the tenth respondent, Mr Derek Jones, or, alternatively, an order for deemed service pursuant to r 10.23 of the Rules, on the basis of the steps undertaken by the applicant to date.

2    In support of this application, the applicant relies upon three affidavits: the affidavit of Madeleine Jane Clohessy dated 16 February 2016; the affidavit of Sarfraz Iqbal Ali dated 15 February 2016; and the affidavit of Joseph Michael Goy dated 15 February 2016.

3    Rule 8.06 of the Rules requires that an originating application and the statement of claim or accompanying affidavit be served personally on each respondent named in the originating application. In the case of an individual, such as Mr Jones, r 10.01 of the Rules states that r 8.06 is satisfied by leaving the relevant documents with the individual.

4    Rule 10.24 of the Rules provides:

If it is not practicable to serve a document on a person in a way required by these Rules, a party may apply to the Court without notice for an order:

(a)    substituting another method of service; or

(b)    specifying that, instead of being served, certain steps be taken to bring the document to the attention of the person; or

(c)    specifying that the document is taken to have been served:

(i)    on the happening of a specified event; or

(ii)    at the end of a specified time.

5    The evidence shows that the applicant has attempted, and failed, to serve the Originating Documents on Mr Jones personally.

6    Mr Goy has deposed that he attempted to serve Mr Jones personally on 10 December 2015 at the address provided to him by Mr Jones’s employer, York Civil Pty Ltd (York Civil). Mr Goy did not locate Mr Jones at his residence and then telephoned Mr Jones on the mobile phone number which had been provided by York Civil. Mr Jones answered this phone call and, in the ensuing conversation, advised Mr Goy that he no longer lived at the address provided by York Civil. Mr Jones refused to provide an updated address, apparently stating that he lived “anywhere and everywhere”.

7    Ms Clohessy deposed that she emailed the Originating Documents to Mr Jones on 11 February 2016 at the email address derekliverpooljones@hotmail.com, which was provided by York Civil. Ms Clohessy further deposed that she received a delivery receipt confirming the successful delivery of this email to Mr Jones’s email address.

8    The applicant referred to the decision of Katzmann J in Electrolux Home Products Pty Ltd v Delap Impex Ltd (2013) 103 IPR 421 in support of this application.

9    In that case, Katzmann J held that an order for substituted service under r 10.24(a) of the Rules was justified where there had been no attempt to serve the individual respondent personally, but there was apparent unwillingness on the part of that respondent to provide an address for service. At [79]-[80], Katzmann J observed:

In Speedo [Speedo Holdings BV v Evans [2011] FCA 1089], Flick J was satisfied that it was not practicable to effect personal service after a number of attempts had been made to do so.

In the present case there has been no attempt to serve Ms Szabo personally but Ms Szabo appears to be unwilling to provide an address at which she may be served. Independent efforts to find one have been unsuccessful. I am prepared to accept that Ms Szabo is unlikely to disclose an address even if pressed. For all practical purposes, then, personal service is not feasible.

10    In this case, there has been an attempt to serve Mr Jones personally. This has been unsuccessful. It is apparent that service cannot be effected personally as the applicant does not have Mr Jones’s current address, and Mr Jones has been, and no doubt would continue to be, evasive when asked to provide that address. I find, therefore, that service in accordance with r 8.06 of the Rules is not practicable. Accordingly, I will order that the applicant will be permitted to serve Mr Jones by substituted service under rule 10.24(a) of the Rules.

11    The applicant proposed that substituted service under r 10.24(a) should be effected upon Mr Jones by:

(a)    sending a copy of each of the Originating Documents in an email addressed to [Mr] Jones at derekliverpooljones@hotmail.com; and

(b)    sending the text message set out below to mobile number 0420 768 848:

Dear Mr Jones,

Proceeding WAD 724 of 2015 has been commenced against you in the Federal Court of Australia by the Director of the Fair Work Building Industry Inspectorate alleging contraventions of the Fair Work Act 2009 (Cth). It has been ordered by the Federal Court of Australia that service of the Originating Application and Statement of Claim in the proceeding be effected on you by this notice. If you wish to defend this action, you must file a defence with the Federal Court of Australia within 28 days of this notice. A copy of the Originating Application and Statement of Claim can be provided to you upon your request by calling (08) 9426 8275. If you fail to file a defence then judgment may be entered against you.

12    I consider that the methods of substituted service proposed by the applicant and set out above have a reasonable probability of informing Mr Jones because the use of those methods has previously been effective in bringing material to Mr Jones’s attention. I reach this conclusion because the evidence shows that Mr Jones spoke to Mr Goy on 10 December 2015 when a telephone call was made to mobile phone number 0420 786 848. Mr Ali has also deposed that a text message sent to that number showed as being delivered on Mr Ali’s phone. Further, the evidence shows that Mr Jones is contactable at the email address of derekliverpooljones@hotmail.com because Ms Clohessy has received a delivery confirmation of the email sent by her to this address. Furthermore, both the mobile phone number 0420 786 848 and email address derekliverpooljones@hotmail.com were provided by Mr Jones’s employer, York Civil.

13    I, therefore, make orders in the terms proposed by the applicant.

Associate:

Dated:    24 February 2016

SCHEDULE OF PARTIES