Federal Court of Australia

Lamont v Malishus Limited [2020] FCA 1535

ORDERS

THE COURT ORDERS THAT:

Application for extension of time

1.    The applicant/appellant be granted an extension of time until 4pm on 23 October 2020 to file the notice of appeal in the form of the draft notice of appeal filed on 28 July 2020.

2.    The costs of and incidental to the application for an extension of time be costs in the cause.

Service

3.    Pursuant to s 9 of the Trans-Tasman Proceedings Act 2010 (Cth) (TTPA) and r 36.05 of the Federal Court Rules 2011 (Cth) (FCR), the applicant/appellant be granted leave to serve the following documents on the fourth respondent in New Zealand:

(a)    The application for an extension of time filed on 10 January 2020;

(b)    The notice of appeal filed pursuant to order 1 above; and

(c)    A copy of these orders,

(the Documents).

4.    Pursuant to s 9 of the TTPA and r 10.24 of the FCR, the applicant/appellant be granted leave to serve on the fourth respondent, by email at Rima.Nicholas@police.govt.nz, by 4pm on 30 October 2020, scanned copies of the Documents.

5.    Pursuant to s 9 of the TTPA and FCR 10.24(c), the Documents will be taken to have been personally served on the fourth respondent, upon transmission to the email address recorded in order 5 above.

Sound recordings from the Court below

6.    The parties and their legal representatives be provided with copies of the sound recordings of all hearings conducted before Judge Manousaridis in Federal Circuit Court of Australia proceeding SYG 2008 of 2014.

Pro bono referral

7.    Pursuant to r 4.12 of the Federal Court Rules 2011 (Cth), a referral certificate be issued to the applicant and the first to third respondents for the provision of advice and to appear at the hearing, including any case management hearing, and any dispute resolution process.

Mediation

8.    The matter be referred for mediation, with such mediation to be conducted by a Registrar of the Court, and to take place on or before 1 December 2020.

Case management hearing

9.    The proceeding be listed for case management hearing at 9.30am on 16 December 2020.

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

REASONS FOR JUDGMENT

(Revised from transcript)

BURLEY J:

1    I grant the applicant, Darren Lamont, an extension of time within which to file a notice of appeal from the Federal Circuit Court of Australia, and make consequential orders for the conduct of the appeal.

2    It is also necessary for me to resolve an interlocutory application filed by Mr Lamont on 9 October 2020, whereby Mr Lamont seeks leave to effect substituted service on the fourth respondent, Rima Nicholas. Mr Nicholas is a former officer of the first respondent, Malishus Ltd, which is a New Zealand company. He also resides in New Zealand.

3    In this proceeding, Mr Lamont seeks to appeal from a decision of the Federal Circuit Court of Australia (FCCA) in proceeding SYG 2008 of 2014. Mr Nicholas was the fourth respondent before the FCCA, but he did not appear in that proceeding.

4    In support of his interlocutory application Mr Lamont has lodged an affidavit dated 9 October 2020 in which he sets out his attempts to serve Mr Nicholas. These include several emails to the email address Mr Lamont understands to be maintained by Mr Nicholas, and Mr Lamont’s engagement of a process server in New Zealand.

5    On 30 July 2020 Mr Lamont filed an affidavit of Karl Kenneth Francis Lewis affirmed on 29 June 2020. Mr Lewis, who is a process server in New Zealand, gives evidence that he spoke with Mr Nicholas by telephone, and during that conversation Mr Nicholas: refused to accept personal service; asked that documents instead be provided to him by email; and provided Mr Lewis with his preferred email address, namely Rima.Nicholas@police.govt.nz. Mr Lewis emailed various documents, including an application for an extension of time dated 8 January 2020, to Mr Nicholas on 23 June 2020. On 24 June 2020 Mr Nicholas responded to Mr Lewis’ email in the following terms:

Hi,

I received your email but I have not opened or viewed the document.

I’m letting you know that I have nothing to do with whoever is trying to serve me papers. I have had no involvement with the company Malishus in over five years. I have been dropped from the latest court proceedings in Australia and would appreciate it if you would stop harassing me. This is an Australian matter which I am not a resident or part of.

Regards

Rima Nicholas

6    The reference in Mr Nicholas’ email to “the latest court proceedings in Australia” is apparently a reference to FCCA proceeding SYG 787 of 2020.

7    There are two principal issues for determination:

(1)    Should leave be granted to Mr Lamont to serve Mr Nicholas outside the jurisdiction?

(2)    Should leave be granted for substituted service on Mr Nicholas?

8    Division 2 of the Trans-Tasman Proceedings Act 2010 (Cth) (TTPA) permits the service in New Zealand of initiating documents issued in civil proceedings commenced in Australian courts.

9    Section 9 provides:

 (1)  An initiating document issued by an Australian court or tribunal that relates to the proceeding may be served in New Zealand under this Part.

 (2)  However, the document must be served in New Zealand in the same way that the document is required or permitted, under the procedural rules of the Australian court or tribunal, to be served in the place of issue.

Note:      For service of the initiating document in New Zealand under this Part, it is not necessary for the Australian court or tribunal:

           (a)    to give leave for the service; or

           (b)    to be satisfied that there is a connection between the proceeding and Australia.

10    As stated in the Note to s 9, Mr Lamont does not require leave to serve Mr Nicholas outside the jurisdiction. However, the TTPA requires Mr Lamont to serve Mr Nicholas in the same way that the procedural rules of this Court, the Federal Court Rules 2011 (Cth) (FCR), require the application for an extension of time and notice of appeal to be served.

11    FCR 36.06 provides that an application for an extension of time or a notice of appeal must be served either personally on each party, or by delivery to the party’s address for service in the court below. Mr Nicholas did not appear before the FCCA, and therefore has not previously provided an address for service. As noted above, Mr Lamont gives evidence of his attempts to effect personal service on Mr Nicholas by engaging a process server. Mr Lewis gives evidence that Mr Nicholas has refused to accept personal service. It therefore appears that Mr Lamont is unable to effect service of the application for an extension of time or the notice of appeal “in the same way that […] is required or permitted, under the procedural rules of the Australian court” as required by TTPA s 9.

12    However, I consider that the terms of s 9(2) are broad enough to permit service of a document in accordance with any of the FCRs, including the rules in relation to substituted service and deemed service. In Webster v Brewer [2020] FCA 622 Wheelahan J tentatively expressed the same view at [21], though it was unnecessary for his Honour to determine the issue in that case.

13    FCR 10.24 allows for substituted service “[i]f it is not practicable to serve a document on a person in a way required by these Rules”. FCR 10.24(c) enables the Court to make orders specifying that a document served by substituted service is taken to have been served on the happening of a specified event.

14    Having regard to the evidence of Mr Lamont and Mr Lewis, I am persuaded that it is not practicable for Mr Lamont to effect personal service on Mr Nicholas. I am satisfied that the email address Rima.Nicholas@police.govt.nz is maintained by Mr Nicholas, and that the documents are likely to come to his attention at that address. Indeed, Mr Nicholas has informed Mr Lewis that email to that address is his preferred method of service. I will therefore grant leave for Mr Nicholas to be served at that email address. Having regard to Mr Nicholas’s statement that he received Mr Lewis’s email but “ha[s] not opened or viewed the document”, I will also order that documents will be taken to have been served on Mr Nicholas upon transmission to that email address.

Associate:

Dated:    21 October 2020

SCHEDULE OF PARTIES