FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Windus [2019] FCA 1526

ORDERS

THE COURT ORDERS THAT:

1.    The cross-claimants' interlocutory application dated 1 August 2019 is allowed.

Substitution of the first cross-respondent

2.    Pursuant to r 9.08 of the Federal Court Rules 2011 (Cth) (Rules), SKS Group Pty Ltd (ACN 122 565 262) is removed as the first cross-respondent.

3.    Pursuant to r 9.05(1) of the Rules, SKS Builders Pty Ltd (ACN 163 340 181) is joined to the proceedings and substituted as the first cross-respondent.

4.    The cross-claimants are granted leave to file and serve an amended notice of cross-claim and an amended statement of cross-claim substituting SKS Builders Pty Ltd (ACN 163 340 181) as the first cross-respondent by no later than 16 September 2019.

Substituted service on the third cross-respondent

5.    Pursuant to r 10.24(b) of the Rules:

(a)    each of the notice of cross-claim and statement of cross-claim filed in these proceedings (Cross-claim Documents) may be served and be brought to the attention of the third cross-respondent by:

(i)    sending a text message to the telephone number given in paragraph 6 of the affidavit of Nicola Iannetta affirmed 10 September 2019 in these proceedings stating as follows:

Dear Mr Sipkes

A cross-claim in proceeding WAD 185 of 2019 has been commenced against you in the Federal Court of Australia by the Construction, Forestry, Maritime, Mining and Energy Union, Stephen Parker and John Windus alleging breaches of the Fair Work Act 2009 (Cth). The court has ordered that you may be served with the documents commencing the cross-claim by emailing them to a gmail.com address believed to be yours, and by means of this text message.

If you wish to defend the cross-claim, you must file a notice of address for service in the Federal Court of Australia. You must also file a defence to the cross-claim WITHIN 28 DAYS after the emailing of the documents or receipt of this text message (whichever is the last to occur). A copy of the notice of cross-claim and statement of cross-claim will be provided to you upon your request by calling (08) 9428 3333 or emailing abby.hadlow@eurekalawyers.com.au.

IMPORTANT: if you fail to file a notice of address for service, or fail to file a defence in the required time, then judgment may be entered against you or other orders adverse to your interests may be made.

(ii)    emailing portable document format (pdf) copies of the Cross-claim Documents and these orders to the email address given at paragraph 16 of the affidavit of David Anthony Edward Scaife affirmed 11 September 2019 in these proceedings, which email address must state as follows:

Dear Mr Sipkes

A cross-claim in proceeding WAD 185 of 2019 has been commenced against you in the Federal Court of Australia by the Construction, Forestry, Maritime, Mining and Energy Union, Stephen Parker and John Windus alleging breaches of the Fair Work Act 2009 (Cth). The court has ordered that you may be served with the documents commencing the cross-claim by sending them by way of this email and by means of a text message to a telephone number believed to be yours.

If you wish to defend the cross-claim, you must file a notice of address for service in the Federal Court of Australia. You must also file a defence to the cross-claim WITHIN 28 DAYS after receipt of this email or receipt of the text message (whichever is the last to occur). A copy of each of the notice of cross-claim and statement of cross-claim is attached to this email.

IMPORTANT: if you fail to file a notice of address for service, or fail to file a defence in the required time, then judgment may be entered against you or other orders adverse to your interests may be made.

(b)    the Cross-claim Documents will be taken to have been served on the date of the last to occur of service as required by paragraph 1(a)(i) or 1(a)(ii) of these orders.

Further directions

6.    By no later than 21 October 2019, the cross-respondents shall file and serve any defence(s) to the cross-claim.

7.    By no later than 4 November 2019, the cross-claimants shall file and serve any reply.

8.    The cross-claim is listed for a mediation before a Registrar of this Court on a date to be fixed after 11 November 2019.

9.    Liberty to apply on 48 hours' notice.

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

REASONS FOR JUDGMENT

JACKSON J:

1    In these proceedings, the Australian Building and Construction Commissioner seeks pecuniary penalties against the Construction, Forestry, Maritime, Mining and Energy Union and two of its officers in relation to alleged contraventions of the Fair Work Act 2009 (Cth). The contraventions are said to have occurred during certain incidents that took place on 15 February 2019 when the union officers entered the construction site at the proposed DoubleTree by Hilton hotel in Perth. The union and its officers have cross-claimed against the principal contractor for the project and three of its present or former employees who are said to have been involved in the incidents, alleging other contraventions of the Fair Work Act. This court has jurisdiction in relation to the matter by reason of s 562 of the Act.

2    It is not necessary to describe the claims or cross-claims in any detail in these reasons, which deal solely with an application by the cross-claimants (respondents) for an order under r 10.24 of the Federal Court Rules 2011 (Cth) for substituted service of the notice of cross-claim and statement of cross-claim on the third cross-respondent, Benjamin Sipkes.

3    The application is supported by an affidavit of David Scaife, a solicitor acting for the cross-claimants, an affidavit of Christopher Prast, an officer of the union, and an affidavit from each of two process servers.

4    The cross-claim was filed on 20 May 2019. A chronology of subsequent relevant events which emerges from the affidavits is as follows:

(1)    On 22 May 2019, Mr Scaife obtained an address for Mr Sipkes from an electoral roll search.

(2)    On 23 May 2019, a process server visited the project site to try to serve the notice of cross-claim on Mr Sipkes. The process server spoke to someone there who, it seems, was Thayalan Krishnan, another one of the cross-respondents. Mr Krishnan said that Mr Sipkes was not in that day. He gave the process server a telephone number for Mr Sipkes. The process server called it and spoke to Mr Sipkes. Mr Sipkes said he was on leave but that he would make himself available to be served at the site on 4 June 2019.

(3)    The same process server made another attempt to serve Mr Sipkes at the site on 31 May 2019. Someone there told her that he had not seen Mr Sipkes all day and he assumed that he was not working.

(4)    The process server went to the site again on 4 June 2019. Mr Krishnan told her that Mr Sipkes had resigned and no longer worked at the site.

(5)    On 1 August 2019, Mr Prast called the telephone number mentioned above. The call went through to message bank. Mr Prast did not leave a message.

(6)    On 6 August 2019, the second process server tried to serve Mr Sipkes with a copy of the notice of cross-claim and statement of cross-claim at the address shown on the electoral roll. The lights were on but no one came to the door when he knocked. A neighbour was not sure whether Mr Sipkes still lived there.

(7)    On 8 August 2019, the process server made another attempt to serve Mr Sipkes at the same property. Someone came to the door this time but said that Mr Sipkes did not live there and that he may have been a previous occupant of the property.

(8)    On 2 September 2019, as a result of a subpoena, Mr Scaife obtained a possible alternative residential address and telephone number and two possible email addresses for Mr Sipkes.

(9)    On 3 September 2019, Mr Scaife sent an email to each of the email addresses indicating that he had tried to serve Mr Sipkes with documents commencing the cross-claim, that an attempt would be made to serve him at the alternative residential address, and notifying him of the making of the present application and the date and time at which it would be heard. A notification came back that one of the emails was undeliverable because the mailbox had been disabled. A notification came back indicating successful delivery to the other address. Mr Scaife's affidavit does not mention any reply to the email from Mr Sipkes, so I infer that there was none.

(10)    On the same day, the second process server tried to serve Mr Sipkes at the possible alternative residential address. He spoke to someone there who said Mr Sipkes did not live there. A neighbour indicated to the process server that Mr Sipkes moved out about a year ago. The neighbour did not have any forwarding address.

5    Rule 10.24 of the Federal Court 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.

6    In Commissioner of Taxation v Caratti (No 2) [2018] FCA 1500 at [10], Colvin J said:

The preponderance of authority is to the effect that the current rule requires the applicant for orders for substituted service to demonstrate that it is not sensible or realistic to effect personal service even though it may be possible or feasible to do so. This will usually be done by taking steps to effect personal service and providing evidence as to any difficulties that have arisen in doing so. It is not necessary to go so far as to demonstrate that there is an inability to effect personal service or that it would be extraordinarily difficult to do so. Further, there must be a proper evidential basis upon which to conclude that in all probability the mode of substituted service that is proposed will bring the relevant documents to the attention of the party to be served.

7    I am satisfied that in this case the cross-claimants have demonstrated that it is not practicable to serve the notice of cross-claim and statement of cross-claim on Mr Sipkes by personal service, that being the way required by r 15.08(2) of the Federal Court Rules. Numerous attempts have been made to serve him by that method at three different places. It appears he no longer works or lives at those places and the cross-claimants do not know his whereabouts.

8    An order for substituted service under r 10.24 must be based on a reasonable probability that the identified method of service will inform the intended recipient: Statewide Secured Investments Pty Ltd v Tarrant [2011] FCA 1067 at [10] (Flick J). Where experience has shown that a particular method of communication has resulted in material being brought to the attention of the person to be served, an order for substituted service according to that method will be likely to achieve the same result: British American Tobacco Australasia Limited v Taleb (No 1) [2012] FCA 1065 at [30] (Dodds-Streeton J) citing Combis (Trustee) v Spottiswood [2011] FCA 1082; (2011) 123 ALD 40 at [16] (Logan J).

9    The order that the cross-claimants seek here is to the effect that the documents may be served by sending a text message to Mr Sipkes at the telephone number which he answered when called by the first process server and by sending an email to the email address where Mr Scaife received notification that the email had been received. I am satisfied that the combination of those two measures will give rise to a reasonable probability that Mr Sipkes is informed of the fact of the commencement of the cross-claim against him, the contents of the documents commencing the cross-claim, and the potential consequences for him of the commencement of the proceedings. I will therefore order substituted service on Mr Sipkes on that basis.

Associate:

Dated:    17 September 2019