FEDERAL COURT OF AUSTRALIA

bCode Pty Ltd (in liq) v Holford [2018] FCA 798

ORDERS

THE COURT ORDERS THAT:

1.    Personal service of the service of the originating application, statement of claim and genuine steps statement, each filed 13 February 2018, be dispensed with.

2.    Pursuant to r 10.24 of the Federal Court Rules 2011, service of the originating application filed 13 February 2018, the statement of claim filed 13 February 2018, the genuine steps statement filed 13 February 2018 and this order may be effected by:

(a)    posting the documents addressed to the first defendant by pre-paid express post to 2090 The Circle, Sanctuary Cove, Queensland, 4212; and

(b)    transmitting the documents as attachments to an email to troy@holfords.net addressed to the first defendant.

3.    The documents referred to in order 2 will be taken to be served seven days after the applicant completing the steps in order 2.

4.    Costs of the application be reserved.

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

REASONS FOR JUDGMENT

GLEESON J:

1    The plaintiff (“bCode”) applied for substituted service on the first defendant (“Mr Holford”) pursuant to r 10.24 of the Federal Court Rules 2011.

2    Rule 10.24 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.

Evidence in support of application

3    The evidence in support of the application comprises an affidavit of Laura Scotton, solicitor, sworn 21 May 2018 and an affidavit of attempted service from Warren Russ, commercial agent, sworn 26 April 2018.

4    Ms Scotton’s evidence shows that:

(1)    Mr Holford is the owner of a property located at 2090 The Circle, Sanctuary Cove, Queensland (“the Sanctuary Cove address”).

(2)    Mr Holford’s address in ASIC records is the Sanctuary Cove address.

(3)    Mr Holford is the director and shareholder of Holford Properties Pty Ltd. The company’s principal place of business is the Sanctuary Cove address.

(4)    On 23 and 26 February 2018, Mr Holford sent emails to Kelvin Ng of Ernst & Young from troy@holfords.net.

5    Mr Russ gave evidence of his attempts to serve documents on Mr Holford. Mr Russ first attended the Sanctuary Cove address on 8 March 2018 at 8.30 pm, and noted the address to be within a secure gated housing estate. Mr Russ was told by a male security guard that Mr Holford was in France until the end of the month. Mr Russ and the security guard had a conversation to the following effect:

Security guard:    Mr Holford has asked what this matter is regarding.

Russ:    The Bcode matter.

Security guard:    Ok, Mr Holford said you can go to his residence and leave anything you have with his son who is at his address.

Russ:     I have to see Mr Holford personally, I won't require access to the residence this evening, however, can I confirm the address I have is Mr Holford’s correct address?

Security guard:    Yes.

6    Mr Russ also gave evidence that, on 16 April 2018 at 7.20 pm, he re-attended the Sanctuary Cove address and spoke with a male security guard via intercom and asked for access to Mr Holford’s address. According to Mr Russ, the security guard attempted to make contact with Mr Holford via his mobile phone number listed with security for the residence, but received no answer.

7    On 18 April 2018 at 7.05 pm, Mr Russ returned to the Sanctuary Cove address and spoke to a man, who appeared to be a security guard, on an intercom system and asked: “Would you call Mr Holford’s address being 2090 The Circle?”. The guard came back after a short time and told Mr Russ that he had spoken to a female at the residence, who said that Mr Holford was still overseas and terminated the call. Mr Russ asked the guard to call the woman back because he had authorisation to leave the documents with a resident at the address. The guard called back and told Mr Russ there was now no answer at the premises.

8    On 20 April 2018 at 7.00 pm, Mr Russ returned to the Sanctuary Cove address and spoke to a man, who appeared to be a security guard, on an intercom system and asked: “Would you call Mr Holford’s address being 2090 The Circle?”. The guard came back after a short time and said that he had received no answer.

Relevant principles

9    The salient issue is whether personal service on Mr Holford is “not practicable” within the meaning of r 10.24.

10    In Australian Securities and Investments Commission v China Environment Group Ltd [2013] FCA 286 at [11], Besanko J noted that the ordinary meaning of the word “practicable” includes the concepts of feasibility and capability. At [12], his Honour stated that the meaning of “not practicable” must be determined according to the circumstances of the particular proceedings, including the relief sought and the requirement that the litigation be progressed quickly and efficiently, citing Rohalo Pharmaceutical Pty Ltd v R P Scherer SpA (1994) 15 ACSR 347 at 366 and Ricegrowers Co-operative Ltd and Another v ABC Containerline NV and Others (1996) 138 ALR 480 (“Ricegrowers”) at 482.

11    In Ricegrowers, Tamberlin J explained at 482 that:

The meaning of the expression “practicable” for the purpose of a substituted service application under the corresponding United Kingdom rule was considered by the Court of Appeal in Paragon Group Ltd v Burnell [1991] 2 All ER 388. Lloyd LJ considered that the word “practicable” should be given a wide meaning and that the simple question was whether it was “practicable” to serve by one of the prescribed methods (at 390). The expression “not practicable” is in my view essentially identical in meaning to the term “impractical”. In order to establish impracticality some attempt, at least, should be made to effect service in accordance with the rules, or evidence should be led that it is so obviously futile as not to warrant an attempt at service. In this case, there is no evidence of obvious futility nor has any attempt been made to serve in accordance with the rules.

12    It is not necessary for the applicant to prove that it is impossible to effect personal service, or that it would be futile to attempt to do so, before an order for substituted service can be made: Commissioner of Taxation v Zeitouni [2013] FCA 1011; (2013) 306 ALR 603 at [66].

Consideration

13    I am satisfied that it is impracticable to effect personal service on Mr Holford since he resides in a secure housing estate where access is only permitted by security guards authorised by a resident. Mr Russ has made four unsuccessful attempts to effect service at that address.

14    The evidence does not suggest that further attempts to effect personal service at the Sanctuary Cove address are likely to be successful.

15    However, it seems likely that documents sent to the Sanctuary Cove address will come to Mr Holford’s attention because the evidence strongly suggests that he ordinarily resides at the address, albeit he may have been overseas for portions of March and April 2018.

16    It is also likely that documents sent to the email address troy@holfords.net will come to Mr Holford’s attention because he has used that email address in the recent past.

Conclusion

17    Being satisfied of these matters, I will make orders for substituted service of the originating application filed 13 February 2018, the statement of claim filed 13 February 2018, the genuine steps statement filed 13 February 2018 and this order on Mr Holford via post and email.

Associate:

Dated:    31 May 2018