Federal Court of Australia
Connelly (liquidator), in the matter of CIMC Rolling Stock Australia Pty Ltd (in liq) v One Rail Australia (FLA) Pty Ltd [2021] FCA 1023
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. Pursuant to rule 10.24 of the Federal Court Rules 2011 (Cth), copies of the Notice of Cross-Claim filed by the cross-claimant on 1 July 2021, Statement of Cross-Claim filed by the cross-claimant on 1 July 2021 and Amended Statement of Cross-Claim filed by the cross-claimant on 12 August 2021 (the Cross-Claim Originating Documents), the interlocutory application filed on 20 August 2021, a sealed copy of these orders and the reasons for judgment in support of these orders be served upon the third cross-defendant by way of:
(a) email to the solicitors for the plaintiffs at the email addresses of jdaniel@tglaw.com.au and tsmith@tglaw.com.au marked with attention to Bradley Kym Usher;
(b) email to bku55@bigpond.com marked with attention to Bradley Kym Usher; and
(c) express, registered post to 90 Spring Street, Queenstown SA 5014 marked with attention to Bradley Kym Usher.
2. The documents served upon the third cross-defendant pursuant to order 1 shall be accompanied by a notice stating: “Mr Usher, this is a notice to inform you that the next case management hearing in the Federal Court of Australia, matter QUD134/2021 – Anthony Norman Connelly and William James Harris as Liquidators of CIMC Rolling Stock Australia Pty Ltd (In Liquidation) ACN 083 334 696 & Anor v One Rail Australia (FLA) Pty Ltd (Formerly Freightliner Australia Pty Ltd) ACN 122 522 123, shall be held at 2.30 pm on Monday, 13 September 2021 by Microsoft Teams.”
3. The plaintiffs are directed to instruct their solicitors to forward the email referred to in paragraph 1(a) of this Order to the third cross-defendant at the email address which their solicitors used to communicate with the third cross-defendant on 5 August 2021.
4. Service of the Cross-Claim Originating Documents upon the third cross-defendant is deemed to have been effected after five business days of the documents having been posted in accordance with order 1(c) above.
5. The interlocutory application is otherwise adjourned to 2.30pm on 13 September 2021.
6. The cross-claimant is directed to file any further affidavit material and any further outline of submissions in relation to its interlocutory application by 4.00 pm, 9 September 2021.
7. Costs reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
DOWNES J:
1 The cross-claimant filed an interlocutory application on 20 August 2021 which seeks orders with respect to service upon the second cross-defendant (who is located overseas) and the third cross-defendant (who is located in Australia).
2 The application with respect to the second cross-defendant will be heard on 13 September 2021.
3 The application with respect to the third cross-defendant (Mr Usher) can be dealt with on the papers.
4 This is an application brought pursuant to rule 10.24 Federal Court Rules 2011 (Cth) (FCR) which seeks the following orders:
1. Pursuant to rule 10.24 of the FCR, an order that the requirement for personal service of the [Notice of Cross-Claim filed by the Cross-Claimant on 1 July 2021, Statement of Cross-Claim filed by the Cross-Claimant on 1 July 2021, and Amended Statement of Cross-Claim filed by the Cross-Claimant on 12 August 2021 (the Cross-Claim Originating Documents)] upon the Third Cross-Defendant be dispensed with.
2. Pursuant to rule 10.24 of the FCR, an order that copies of the Cross-Claim Originating Documents, this Interlocutory Application and a sealed copy of the orders made pursuant to it be served upon the Third Cross-Defendant by way of:
a. email to the solicitors for the Plaintiffs and First Cross-Defendant (jdaniel@tglaw.com.au; tsmith@tglaw.com.au) marked with attention to Bradley Kym Usher;
b. email to bku55@bigpond.com marked with attention to Bradley Kym Usher; and
c. express, registered post to 90 Spring Street, Queenstown SA 5014 marked with attention to Bradley Kym Usher.
3. Service of the Third Cross-Defendant be deemed to have been effected within 3 business days of the Cross-Claim Originating Documents being sent as contemplated by order [2] above.
5 On 23 August 2021, following an inquiry from my chambers as to whether the cross-claimant intended to file any further affidavit material which addresses the requirements of rules 10.43(3), 10.43(4) and 10.49 FCR, the cross-claimant’s solicitors provided an outline of submissions (submissions) and a copy of a letter from Thomson Geer (the plaintiffs’ solicitors) to King & Wood Mallesons (the cross-claimant’s solicitors) dated 19 August 2021 (the 19 August letter).
6 As the submissions have not been filed, I will make the submissions an exhibit (exhibit 1) and the 19 August letter a separate exhibit (exhibit 2).
7 The submissions state in paragraph 2 that the cross-claimant relies upon the affidavit of David Cowling sworn on 20 August 2021 (the Cowling affidavit) and the 19 August letter in support of its application. I note that the 19 August letter is identical to the document which is exhibited at Tab 22 of DPC-2 to the Cowling affidavit.
8 The evidence relied upon by the cross-claimant discloses the following:
(a) as at 20 August 2021, the cross-claimant has been unable to serve Mr Usher in accordance with the FCR;
(b) Mr Usher is a director of the second plaintiff (or was as at 24 June 2021);
(c) the plaintiffs’ solicitors do not hold instructions to accept service for Mr Usher;
(d) the address for Mr Usher which is disclosed on the records maintained by the Australian Securities and Investments Commission in relation to the second plaintiff is “90 Spring Street, Queenstown SA 5014” (Usher ASIC address);
(e) attempts were made to serve Mr Usher personally at the Usher ASIC address by a licensed process server but these attempts failed. The process server later provided a ‘skip trace’ report which confirmed the Usher ASIC address as being the address for Mr Usher and which also provided an email address for him, being bku55@bigpond.com (Usher email address);
(f) attempts were made by the cross-claimant’s solicitors to call Mr Usher on a particular mobile number, without success. On 5 August 2021, the fourth cross-defendant (by his solicitors) provided Mr Usher’s mobile number, which was the same number as that which the cross-claimant’s solicitors had called several times in July and August 2021;
(g) Mr Usher did not contact the cross-claimant’s solicitors despite being requested to do so in a voicemail message which was left by them on 16 July 2021 after the solicitors called the mobile number referred to above;
(h) the plaintiffs’ solicitors have an email address for Mr Usher (which was current as at 5 August 2021) but Mr Usher has not consented to that email address being provided to the cross-claimant’s solicitors;
(i) Mr Usher was made aware of these proceedings on 5 August 2021 by the plaintiffs’ solicitors, and he was also made aware that he had been named as a defendant to the cross-claim. Notwithstanding this, he has not made contact with the cross-claimant’s solicitors.
9 Rule 15.08(2) FCR requires that, if a cross-respondent has not filed a notice of address for service, the notice of cross-claim must be served personally.
10 Rule 10.01 FCR provides that a document that is to be served personally on an individual must be served by leaving the document with the individual.
11 Rule 10.24 FCR provides as follows:
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.
Note: Without notice is defined in the Dictionary.
12 Having regard to the evidence referred to above, I am satisfied that it is not practicable to serve the Cross-Claim Originating Documents on Mr Usher personally in that it is not sensible or realistic to effect personal service on him even though it may be possible or feasible to do so. This applies the test stated in Commissioner of Taxation v Caratti (No 2) [2018] FCA 1500, [10].
13 The evidence discloses that, in particular, the cross-claimant has attempted to identify the address, email address and mobile number of Mr Usher; there have been failed attempts to serve Mr Usher personally; Mr Usher has failed to contact the cross-claimant’s solicitors notwithstanding that he was contacted by them and he is aware of the proceedings, including the existence of a claim being brought against him personally; and Mr Usher has refused to permit the plaintiffs’ solicitors to provide his email address to the cross-claimant’s solicitors.
14 The proposed means of substituted service of the Cross-Claim Originating Documents include:
(a) service by email to the Usher email address;
(b) service by post to the Usher ASIC address;
and both addresses have been verified by the ‘skip trace’ report referred to above.
15 The cross-claimant also seeks an order that the documents in question be emailed to the plaintiffs’ solicitors, marked to the attention of Mr Usher. The plaintiffs’ solicitors do not act for Mr Usher although they were in contact with him on 5 August 2021 by email, as shown in the attachments to the 19 August letter.
16 I infer from this evidence that Mr Usher is likely to receive documents sent to the same email address which he used to correspond with the plaintiffs’ solicitors.
17 I will modify the order sought by the cross-claimant so as to direct the plaintiffs to instruct their solicitors to forward the email and attached documents to Mr Usher to the email address which they used to communicate with Mr Usher on 5 August 2021.
18 Having regard to the evidence, there is a reasonable probability that the modes of substituted service, as identified in the orders which I will make, will bring the Cross-Claim Originating Documents to the attention of Mr Usher, as is required: see British American Tobacco Australasia Limited v Taleb (No 1) [2012] FCA 1065, [30], [34]; Rowe (by next friend Guscott) v Barton as Trustee for Barton Family Trust trading as Sealwerx WA [2021] FCA 196, [9], [11].
19 In my view and to enable the proceeding to progress more efficiently, the documents to be served on Mr Usher ought to include a copy of these reasons and a notice informing him of the date of the next case management hearing in this proceeding. The wording of that notice will be included in the orders to be made.
20 Having regard to the means of substituted service, including by post, an order that service be deemed to have been effected after five business days of the documents being posted is appropriate.
21 Turning to the balance of the orders sought in relation to Mr Usher:
(a) an order that the requirement for personal service be dispensed with is unnecessary having regard to the balance of the orders which I propose to make;
(b) I will reserve the costs to enable Mr Usher to be heard on this issue.
22 For these reasons, I will make orders in terms which reflect these reasons and which include some amendment to the orders sought by the cross-claimant on its application for substituted service upon Mr Usher.
23 The balance of the interlocutory application will be heard on 13 September 2021.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Downes. |
Associate:
QUD 134 of 2021 | |
RUI ZHAN | |
Third Cross-Defendant | BRADLEY KYM USHER |
Fourth Cross-Defendant | BARRY MIDGLEY |
