Federal Court of Australia

General Manager, Fair Work Commission v Construction, Forestry and Maritime Employees Union (Substituted Service) [2024] FCA 875

ORDERS

OTHER MATTERS:

A.    The Court will set a date for a further case management hearing in the proceeding, on a date to be fixed. Orders made in this proceeding are available on the Commonwealth Courts Portal (https://www.comcourts.gov.au) by searching for this proceeding using the file number VID758/2024, and an online court file will also be maintained on the Federal Court’s web site (https://www.fedcourt.gov.au).

B.    The New South Wales Minister for Industrial Relations appeared by counsel to inform the Court of a proceeding filed by the Minister in the Industrial Court of New South Wales, seeking declarations and orders in relation to the New South Wales Construction, Forestry and Maritime Employees Union (NSW CFMEU), a State organisation registered under the Industrial Relations Act 1996 (NSW), and officers of the Construction and General Division of the NSW CFMEU, and the possibility of an application to the Supreme Court of New South Wales for the proceedings to be removed from the Industrial Court of New South Wales and transferred to the Federal Court to be heard concurrently with VID758/2024.

THE COURT ORDERS THAT:

1.    By 4.00 pm on 14 August 2024, the first respondent is to send by email or by express or registered post the originating application filed on 2 August 2024, and its accompanying concise statement and genuine steps statement, the letter from Kingston Reid dated 5 August 2024 and its enclosed notice of acting for the Minister for Employment and Workplace Relations (Cth), and any orders in this proceeding (Relevant Documents) to the email address or postal address recorded by the first respondent in its records for each of the second to 269th respondents, by way of service.

2.    By 4.00 pm on 16 August 2024, the first respondent is to file an affidavit of service (which, for the avoidance of doubt, may be by a solicitor acting on behalf of the first respondent):

(a)    verifying that order 1 has been complied with; and

(b)    stating that the first respondent received a bounce back, out of office, return to sender or similar notification which may reasonably indicate that the relevant respondent did not in fact receive the communication.

3.    In relation to the relevant respondents referred to in order 2(b):

(a)    the first respondent is to send by email the Relevant Documents to the branch with which that relevant respondent is associated by 4.00 pm on 20 August 2024;

(b)    the first respondent is to file an affidavit of service (which, for the avoidance of doubt, may be by a solicitor acting on behalf of the first respondent) verifying compliance with order 3(a).

4.    Subject to any further order of the Court, the Relevant Documents are taken as having been served upon one of the second to 269th respondents if:

(a)    they are sent by the first respondent by email or registered post in accordance with order 1; and

(b)    to the extent relevant, they are sent by the first respondent by email in accordance with order 3(a).

5.    The interlocutory application filed by Liam O’Brien, a representative of the Australian Council of Trade Unions, be adjourned to a date to be fixed.

6.    Counsel for the parties and the intervener are to confer with a view to advising the Court of an appropriate date on which to fix the next case management hearing.

7.    Costs be reserved.

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

REASONS FOR JUDGMENT

(Ex tempore, revised)

WHEELAHAN J:

1    The applicant commenced this proceeding on 2 August 2024 seeking declarations, the approval of a scheme and consequential orders directed to the Construction and General Division of the first respondent Union.

2    Apart from the Union, there are 268 named individual respondents to the application. Those individuals are the persons who are identified in the concise statement filed by the applicant as officeholders of the Construction and General Division, or its divisional branches.

3    Ordinarily, originating process must be personally served on a respondent. The applicant seeks an order for substituted service under r 10.24 of the Federal Court Rules 2011 (Cth) on the ground that it is not practicable to serve all 268 individuals personally. The Union consents to the orders proposed. In support, the applicant points to the considerable expense and logistical difficulty of locating each of the respondents, and effecting service personally. Instead, the applicant proposes that service on the individual respondents be effected: (a) by sending specified documents to a postal or email address of the individual respondent known to the Union; and (b) in the event of a bounce back, by sending the documents by email to the respondent’s branch.

4    In Commissioner of Taxation v Caratti (No 2) [2018] FCA 1500, Colvin J at [10] addressed the condition necessary to engage r 10.24, namely that it is not practicable to serve a document on a person in a way required by the Rules –

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.

5    This is the context in which “not practicable” is to be evaluated. The term “not practicable” is also to be interpreted and applied in a way that best promotes the overarching purpose, which is to facilitate the just resolution of disputes according to law, as quickly, inexpensively, and efficiently as possible: Federal Court of Australia Act 1976 (Cth) s 37M. See, in the context of the corresponding New South Wales civil procedure legislation: Capral Ltd v DNV AS [2024] NSWSC 96 at [59]–[62] (Nixon J).

6    In the special circumstances of this case, it is appropriate to take a global approach to the practicability of personal service, rather than focussing on individual respondents. It is in the interests of all parties that effective notice of the proceeding be given to all the respondents without delay so that the proceeding may progress. In these circumstances, I am persuaded that the resources, expense, and delay likely to be incurred in effecting personal service on the individual respondents renders personal service not practicable.

7    As far as discretion is concerned, I am persuaded of the reasonableness of the steps outlined in the proposed orders. Further, there has been, and will likely continue to be, sufficient reporting of this proceeding to make its existence a matter of common knowledge amongst officials of the Construction and General Division of the Union, so as to ameliorate any disadvantages of the proposed order for substituted service. Finally, I observe that, on 11 May 2012, an order for substituted service of a large number of individual respondents was made by Flick J in similar circumstances in the proceeding which was subsequently reported as Brown v Health Services Union [2012] FCA 644; 205 FCR 548.

8    I will make orders for substituted service substantially in the form sought.

Associate:

Dated:    6 August 2024