Federal Court of Australia

Cuzzubbo v Solgold Plc [2024] FCA 594

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s Second Further Amended Statement of Claim filed on 22 February 2024 be taken to have been served upon the eighth respondent on 1 March 2024.

2.    The applicant serve upon the eighth respondent:

(a)    the Third Further Amended Originating Application; and

(b)    these Orders;

by emailing them to “bsangha@maxitcapital.com”.

3.    Upon the applicant, by his lawyers, filing an affidavit deposing that Order 2 has been complied with and that no automated message was received indicating that the email was not delivered, the Third Further Amended Originating Application be taken to have been served upon the eighth respondent on the day after the email is sent.

4.    The applicant’s costs of his application for deemed or substituted service be reserved.

5.    The matter be listed for a case management hearing on 4 July 2024 at 10.15 am in Brisbane.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    The applicant seeks orders for deemed service of his Third Further Amended Originating Application and Second Further Amended Statement of Claim upon the eighth respondent, an individual who resides outside Australia. The applicant seeks, in the alternative, orders allowing substituted service of those documents upon the eighth respondent.

2    On 8 February 2024, the interlocutory application for deemed or substituted service was heard together with an application by four respondents to strike out parts of the applicant’s Further Amended Statement of Claim. After dealing with the strike out application, I gave the applicant leave to file a Second Further Amended Statement of Claim. I also made orders requiring the applicant to attempt to serve the Second Further Amended Statement of Claim upon the eighth respondent, following which the application for deemed or substituted service would be determined on the papers.

3    On 7 March 2024, the applicant sought and was granted leave to file and serve a Third Further Amended Originating Application. I ordered that the applicant attempt to serve that document upon the eighth respondent.

4    The applicant’s attempts to locate and personally serve the eighth respondent were unsuccessful. Accordingly, I will now determine the application for deemed or substituted service on the papers.

5    I will refer to the Third Further Amended Originating Application and Second Further Amended Statement of Claim together as the “Current Claim Documents”. I will refer to the Second Further Amended Originating Application and Further Amended Statement of Claim as the “Earlier Claim Documents”.

The application

6    The applicant seeks orders pursuant to r 10.48 of the Federal Court Rules 2011 (Cth) (the Rules) that the Current Claim Documents be taken to have been served upon the eighth respondent on:

(1)    the date upon which the documents were sent to the lawyers for the first, second, third and sixth respondents; or

(2)    the date upon which the documents were sent to an email address associated with the eighth respondent.

7    The applicant seeks, in the alternative, orders pursuant to rr 1.31, 10.24 and 10.49 of the Rules that personal service of the Current Claim Documents upon the eighth respondent be substituted for and effected by service upon the lawyers for the first respondent.

8    The applicant also seeks further orders the Court deems appropriate, including for the exchange of pleadings.

The statutory provisions

9    Rule 8.06 of the Rules requires personal service of an originating application and of each other document required by r 8.05 or any other rule of the Court to accompany the originating application.

10    Rule 10.48 provides:

Deemed service

A party may apply to the Court without notice for an order that a document is taken to have been served on a person on the day mentioned in the order, if:

(a)    it is not practicable to serve the document on the person outside Australia in accordance with a convention, the Hague Convention or the law of the country in which the person resides; and

(b)    the party provides evidence that the document has been brought to the attention of the person.

11    Rule 10.24 provides:

Substituted service

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.

12    By reason of r 10.45, r 10.24 applies to service upon respondents outside Australia, to the extent that the rule is consistent with Div 10.4 of the Rules and with the Hague Convention or foreign law: Australian Information Commission v Facebook Inc (2020) 144 ACSR 88; [2020] FCA 531 at [65].

13    For the purposes of both rr 10.24 and 10.48, the expression “not practicable” does not mean impossible or unfeasible. In Hamilton v Meta Platforms, Inc (Service out of Jurisdiction) [2022] FCA 681, Cheeseman J observed at [45]:

The condition that “service is [or was] not practicable” in the way otherwise required by the Rules appears in rr 10.23, 10.24 and 10.48 of the Rules. The phrase “not practicable” is given the same meaning for the purposes of each of those rules and is to be understood to contemplate a “state of affairs which is practically impossible to navigate without substantial difficulty”: Sanum Investments Ltd v ST Group Co Ltd (No 2) [2019] FCA 1047 at [45], [151] (Foster J). 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 — it will suffice for an applicant to demonstrate that it is not sensible or realistic to effect personal service even though it may be possible or feasible to do so: Commissioner of Taxation v Caratti (No 2) [2018] FCA 1500 at [10] (Colvin J). Evidence of attempts to serve, attempts to contact the intended recipient and knowledge (or lack of knowledge) of the whereabouts of the intended recipient are relevant to the question of practicability: see, Ross v Cotter [2015] FCA 310 at [2] (Reeves J); and Kosmos Capital Pty Ltd v Turiya Ventures LLC [2019] FCA 528 at [50] (Jackson J).

14    Rule 10.49 provides:

Substituted service

If service on a person outside Australia, in accordance with a convention, the Hague Convention or the law of a foreign country, was not successful, 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.

15    In determining whether an order for substituted service should be made, the Court must be satisfied that it is not practicable for the applicant to effect personal service of the originating documents; and that the proposed alternative means of service will, in all reasonable probability, bring the documents to the respondent’s attention: Commissioner of Taxation v Caratti (No 2) [2018] FCA 1500 at [10]; Commissioner of Taxation v Zeitouni (2013) 306 ALR 603; [2013] FCA 1011 at [84].

16    Rule 10.31 provides that a document that is not required to be served personally may be served, relevantly, at a party’s lawyer’s email address if the party is represented by a lawyer and the lawyer has filed a notice of address for service.

Consideration

17    The eighth respondent is the chief executive officer of Maxit Capital LP (Maxit Capital), a company based in Toronto, Canada. Service upon the eighth respondent of an originating process is covered by the Hague Convention.

18    I will first consider the criteria of r 10.48 of the Rules, under which the applicant has sought an order that the Current Claim Documents be taken to have been served upon the eighth respondent. The first criterion is that it is not practicable to serve the documents in accordance with the Hague Convention. The second criterion is that the applicant provides evidence that the documents have been brought to the attention of the eighth respondent.

19    The applicant’s evidence demonstrates that the applicant’s lawyers attempted service of the Earlier Claim Documents upon the eighth respondent in Canada in accordance with the Hague Convention. At the time of the hearing, around two months after the Earlier Claim Documents were received by the Canadian Central Authority, the applicant’s lawyers had not received any update regarding service of the documents. The applicant submits that, “continued attempts at service via the Hague Convention are unlikely to be successful and therefore would not have any utility”.

20    The applicant submits that it is not practicable to serve the eighth respondent in accordance with the Hague Convention in circumstances where:

(1)    The eighth respondent has not responded to multiple attempts by the applicant’s lawyers to engage with him via the email address “bsangha@maxitcapital.com” (which he had previously and routinely used to correspond with the applicant), including a request to nominate a means by which personal service could be effected upon him.

(2)    A process server engaged by the applicant twice attempted service of the Earlier Claim Documents on the eighth respondent at the address listed on the Maxit Capital website (the only address associated with the eighth respondent ascertained by the applicant), and both attempts were unsuccessful.

(3)    During the second attempt to serve the eighth respondent at the Maxit Capital office, the process server was advised by an unidentified “rep” of Maxit Capital that the eighth respondent lives in Florida, that he only attends the office “once in a while”, and that his contact details were not known.

(4)    The process server again attempted to effect personal service of a draft Third Further Amended Originating Application and the Second Further Amended Statement of Claim upon the eighth respondent at the Maxit Capital office, but did not receive a response at the door, which was locked.

(5)    The eighth respondent has not responded to any voicemails left at a phone number listed on the Maxit Capital website, which has an automated voice response providing line options, including, “for Bob Sangha, press one”, which leads to a voice mail greeting, “identified by a man’s voice as belonging to ‘Bob Sangha’”.

(6)    The eighth respondent answered a call from one of the applicant’s lawyers on the line option, “for Bob Sangha”, at the phone number listed on the Maxit Capital website, but terminated the call after the lawyer stated that she represented the applicant.

(7)    The applicant’s lawyers have not been able to identify any other address for the eighth respondent via LinkedIn and Google searches.

21    On the basis of the applicant’s evidence of attempts to contact and serve the eighth respondent at the only physical address associated with the eighth respondent ascertained by the applicant, I am satisfied that it is not practicable to effect personal service of the Current Claim Documents in accordance with the Hague Convention.

22    As to the second criterion, the applicant submits that a draft Third Further Amended Originating Application and the Second Further Amended Statement of Claim were brought to the attention of the eighth respondent via the following methods:

(1)    sending emails attaching the documents to “bsangha@maxitcapital.com”, the email address previously used by the applicant to correspond with the eighth respondent (the emails did not bounce back).

(2)    leaving voicemails which identified the documents intended to be served upon him, left at the line option “for Bob Sangha” of the phone number listed on the Maxit Capital website; and

(3)    physical delivery of the documents to the Maxit Capital office by the process server.

23    The applicant’s evidence discloses that he routinely corresponded with the eighth respondent via the email address “bsangha@maxitcapital.com” between December 2021 and November 2022, while he was employed by the first respondent. The Maxit Capital website lists an email address for general inquiries (“info@maxitcapital.com”) which shares the same email server as the email associated with the eighth respondent.

24    On 1 March 2024, the applicant’s lawyers sent a draft Third Further Amended Originating Application and the Second Further Amended Statement of Claim to the email address “bsangha@maxitcapital.com”. They did not receive any bounce-back or other automated messages to indicate that the email was not delivered. Accordingly, an inference can be drawn that those documents came to the attention of the eighth respondent.

25    However, there is no evidence that the filed Third Further Amended Originating Application was emailed to the eighth respondent. Rule 8.06 of the Rules requires that an originating application be served. The reference in r 10.48 to an order that, “a document is taken to have been served on a person”, is to a document actually filed under r 2.25 (where the relevant document is required to be filed), not merely to a document in draft proposed to be filed. I am not satisfied that the filed Third Further Amended Originating Application has been brought to the attention of the eighth respondent.

26    I am satisfied that an order for deemed service should be made that the Second Further Amended Statement of Claim is taken to have been served upon the eighth respondent on 1 March 2024, but not that such an order should be made in respect of the Third Further Amended Originating Application.

27    However, I will consider whether an order for substituted service ought to be made in respect of the Third Further Amended Originating Application.

28    The form of the orders for substituted service actually sought by the applicant is misconceived. The applicant seeks orders pursuant to rr 1.31, 10.24 and 10.49 of the Rules that personal service of the Current Claim Documents upon the eighth respondent be substituted for and effected by “ordinary service” upon the lawyers for the first respondent. Rule 10.31 deals with ordinary service and provides that a document that is not required to be served personally may be served, relevantly, at a party’s lawyer’s email address if the party is represented by a lawyer and the lawyer has filed a notice of address for service. There is no evidence that the eighth respondent is currently represented by the first respondent’s lawyer, and no relevant notice of address for service for the eighth respondent has been filed.

29    Nevertheless, it is appropriate to consider whether an order should be made for substituted service on the eighth respondent by way of email to the address “bsangha@maxitcapital.com”.

30    To make an order for substituted service under r 10.24 of the Rules, the Court must be satisfied that it is not practicable for the applicant to effect personal service of the relevant document; and that the proposed alternative means of service will, in all reasonable probability, bring the document to the respondent’s attention.

31    For the reasons already given, I am satisfied that it is not practicable to personally serve the eighth respondent. I am also satisfied that the Third Further Amended Originating Application will, in all reasonable probability, come to the eighth respondent’s attention if it is emailed to him.

32    An order will be made under r 10.24 of the Rules allowing substituted service of the Third Further Amended Originating Application by way of email to “bsangha@maxitcapital.com”.

33    I will order that the applicant serve a copy of the Orders made upon the eighth respondent by sending them to the same email address.

34    I will also order that, upon the applicant, by his lawyers, filing an affidavit deposing that the orders for service have been complied with and that no automated message was received indicating that the email was not delivered, the Third Further Amended Originating Application will be taken to have been served upon the eighth respondent on the day after the email is sent.

35    The costs of the application for deemed or substituted service will be reserved.

36    The matter will be listed for a case management hearing on 4 July 2024 at 10.15 am.

Associate:    

Dated:    7 June 2024

SCHEDULE OF PARTIES