Federal Court of Australia

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 10.24 of the Federal Court Rules 2011 (Cth), the following documents:

3.    At the time of service the applicant is to provide a copy of these orders and the Court’s reasons herein dated 12 October 2022 to the fourth respondent in accordance with the process in paragraph 1 herein.

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

REASONS FOR JUDGMENT

MCEVOY J

1    The applicant, by interlocutory application dated 7 October 2022, sought orders pursuant to r 10.24 of the Federal Court Rules 2011 (Cth) for substituted service of the originating application, statement of claim and genuine steps statement filed 30 September 2022, on the first to fourth respondents. The substituted service was proposed to be by way of two email addresses. The applicant also sought that the first to fourth respondents pay the applicant’s costs of and incidental to the interlocutory application.

2    The first respondent in the proceeding is AU Gold Pty Ltd, the second respondent is National Gold Pty Ltd, the third respondent is Mr Andrew Bruce Kavanagh, and the fourth respondent is Ms Pnina Feldman. Mr Kavanagh and Ms Feldman are the directors and secretaries of the first and second respondent.

3    An affidavit of Mr Emanuele Carbone, solicitor for the applicant, sworn 7 October 2022 is relied on in support of the interlocutory application (supporting affidavit).

4    At the hearing today counsel for the applicant informed the Court that the third respondent had responded by email to the applicant on 9 October 2022 indicating that he would accept service in his own capacity, and on behalf of the first and second respondents. The applicant therefore now only seeks an order for substituted service against the fourth respondent, and that the fourth respondent pay the costs of and incidental to the interlocutory application.

5    Pursuant to r 10.24, the Court is empowered to make an order for substituted service if it is satisfied that it is “not practicable” to effect personal service. The phrase “not practicable” has a wide meaning which depends on all the circumstances of the case: Ross v Cotter [2015] FCA 310 at [1] (Reeves J).

6    The “not practicable” test does not require the applicant to prove that personal service is impossible: Statewide Secured Investments Pty Ltd v Tarrant [2011] FCA 1067 at [9] (Flick J). The question is whether, as at the date on which the application was made, the applicant, using reasonable effort, has been unable to serve the respondent personally: Foxe v Brown (1984) 58 ALR 542 at 547 (Mason J); British American Tobacco Australasia Limited v Taleb (No 1) [2012] FCA 1065 at [25]-[30] (Dodds-Streeton J).

7    The supporting affidavit discloses that an attempt was made to effect service on the fourth respondent on 30 September 2022 by a process server who was engaged by the applicant. That attempt was unsuccessful and the process server has deposed to her attempted service upon the fourth respondent. It appears that the registered offices of the first and second respondent, of which the fourth respondent is a director and secretary, were observed to be vacant by the process server. Upon attempted service of the fourth respondent at her registered residential address the process server was unable to identify the correct unit number, as no unit number was specified in the address registered with ASIC. Furthermore the process server telephoned the fourth respondent on a telephone number provided to her, left a voicemail message, and received no response.

8    The applicant’s legal representatives have also attempted to bring the proceedings to the attention of the fourth respondent via email, but they have received no response.

9    An order for substituted service should be made on the basis that the proposed method of service is reasonably likely to be effective in bringing the proceedings to the attention of the intended recipient: Statewide Secured Investments at [10], [16].

10    The applicant proposes that the method of service would be emailing the relevant documents to the email address pninafeldman@gmail.com, which is the email address the applicant is aware had been used by the fourth respondent in communicating with the receiver of another company, Maroon Gold Pty Ltd on 7 April 2021.

11    Having regard to the terms of r 10.24 of the Rules and on the basis of the matters deposed to in the supporting affidavit, I am satisfied that it is appropriate to make orders permitting substituted service of the documents on the fourth respondent by sending the documents by email to the email addresses referred to above. It is also appropriate that a copy of the order made today and these reasons be served at the same time.

12    The applicant also seeks orders for costs of and incidental to this application. The applicant submits that they attempted service on the fourth respondent’s registered addresses and that following unsuccessful service they emailed the fourth respondent requesting consent to substituted service via email, failing which they would urgently apply to the Court and seek orders for costs. The applicant says a ‘completed receipt’ was received from the fourth respondent, however no acknowledgement of the emails were received. Furthermore, the applicant submits that the fourth respondent had a duty as a director and secretary of the first and second respondents to maintain accurate records on the ASIC register of the company’s business addresses, and her own personal address. The applicant submits that the fourth respondent’s failure in this regard has led to the applicant being unable to serve the documents on her in the usual way.

13    In the circumstances, I am satisfied that failures which can fairly be visited on the fourth respondent have necessitated the application for substituted service and that it is therefore appropriate to make an order that she pay the applicant’s costs of and incidental to the interlocutory application.

Associate:

Dated:    12 October 2022

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