Federal Court of Australia

General Manager, Fair Work Commission v Asmar (Substituted Service) [2024] FCA 1217

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to rule 10.24 of the Federal Court Rules 2011 (Cth), the applicant serve the originating application dated 23 August 2024, the statement of claim dated 23 August 2024 and a sealed copy of this order (together, the documents) on the fourth respondent, Mr Asmar, by:

(a)    Sending copies of the documents by email to david.asmar@hotmail.com;

(b)    Leaving copies of the documents at 7 Blair Court, Keilor, Victoria, 3036; and

(c)    Sending a copy of the documents by post to 7 Blair Court, Keilor, Victoria, 3036.

2.    Upon the applicant, by his lawyers, filing an affidavit that order 1 has been complied with, the documents be taken to have been served upon the fourth respondent, Mr Asmar, the day after the events referred to in order 1 occur.

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

REASONS FOR JUDGMENT

(Ex tempore, revised)

DOWLING J

INTRODUCTION

1    In this proceeding the applicant, the General Manager of the Fair Work Commission, alleges misappropriation of the funds of the Health Services Union by Ms Diana Asmar, the Secretary of the Victoria No 1 Branch of the Union, and others. The others include Mr David Asmar, the fourth respondent and the husband of Ms Diana Asmar.

2    On 10 October 2024, the General Manager filed an interlocutory application seeking an order for substituted service on Mr Asmar, pursuant to rule 10.24 of the Federal Court Rules 2011 (Cth). The General Manager says he has made unsuccessful attempts to personally serve the originating application and statement of claim in the proceeding on Mr Asmar and that the order is necessary because it is not practicable to effect personal service. The interlocutory application was served on all respondents to the proceeding save for Mr Asmar. The first, second, fifth and sixth respondents advised they did not intend to appear at the hearing of the interlocutory application. There was no response from the third and seventh respondents.

3    The General Manager seeks to effect service by an order that Mr Asmar is taken to be served: when Ms Asmar was served; by sending the documents to Mr Asmar’s email address; by posting the documents to Mr Asmar’s residential address; or by leaving a copy of the documents at Mr Asmar’s residential address.

4    For the reasons set out below I consider it appropriate to make an order for substituted service.

Rule and principles

5    An originating process must ordinarily be personally served on an individual respondent. Rule 10.24 of the Rules provides for substituted service where it is not practicable to serve a person in the ordinary way.

6    In Commissioner of Taxation v Caratti (No 2) [2018] FCA 1500, Colvin J at [10] described the circumstances in which r 10.24 applies:

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.

7    Further, the words “not practicable” in r 10.24 should be applied in a way that promotes the overarching purpose of the civil practice and procedure provisions, which is to facilitate the just resolution of disputes according to law and as quickly, inexpensively, and efficiently as possible: Federal Court of Australia Act 1976 (Cth) s 37M.

ATTEMPTS AT SERVICE ON MR ASMAR

8    In support of his interlocutory application, the General Manager has provided evidence that he engaged a process server to serve Mr Asmar at a residential address said to be owned by Mr Asmar, 7 Blair Court, Keilor, Victoria.

9    The first attempt was at 11:49am on Tuesday, 27 August 2024. The process server deposed that he spoke to a woman at the address who advised that Mr Asmar was “not home”. She also said, “she does not understand English”.

10    The second attempt was at 9:36am on Saturday, 31 August 2024. The process server deposed that he spoke to the same woman at the address who again said that Mr Asmar was “not home”. She also said, “she does not speak English”.

11    The third attempt was at 7:20pm on Wednesday, 4 September 2024. The process server deposed that on that occasion he used the intercom at the property to contact the property and no one responded.

12    The General Manager says there is no other address owned by Mr Asmar. The General Manager put into evidence property searches to show that Mr Asmar owned the property at Lot 164 of Plan LP132128. He provided evidence that that is the address at 7 Blair Court, Keilor, VIC, 3036.

13    The General Manager says that david.asmar@hotmail.com is an email address of Mr Asmar. He says that email address was located as the result of his investigations and research.

14    The General Manager says further that given that Mr Asmar is the spouse of the first respondent Ms Asmar, who has filed a notice of acting in this proceeding, and that there has been extensive media coverage of these proceedings, it is open to the Court to infer that Mr Asmar is likely aware of the proceedings and that he is named in them. I accept that submission.

15    Given all these circumstances, the General Manager submits it is not practicable to personally serve Mr Asmar and orders should be made for substituted service.

Disposition

16    Given the attempts at service on Mr Asmar, and that it is likely that Mr Asmar is aware of the proceedings and that he is named in them, I am satisfied that it is appropriate to make orders for substituted service. I am satisfied that it is appropriate to order that substituted service be effected by: sending copies of the originating application, statement of claim and the substituted service orders to Mr Asmar’s email address; by leaving those documents at the residential address of Mr Asmar; and by sending copies of those documents to Mr Asmar’s residential address. I will make orders to that effect.

Associate:

Dated:    18 October 2024

SCHEDULE OF PARTIES