Federal Court of Australia

Health Services Union v Asmar (No 3) [2025] FCA 423

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to rule 10.24 of the Federal Court Rules 2011, service upon the Second Respondent and the Fourth to Fifteenth Respondents of:

(a)    the Affidavit of Lani Dumas dated 20 December 2024;

(b)    the Affidavit of Brianna Leigh Macks dated 13 January 2025;

(c)    the Affidavit of Declan Redden dated 15 January 2025;

(d)    the Affidavit of Lloyd Williams dated 16 January 2025;

(e)    the Affidavit of Jake Sebastian McGuiness dated 17 January 2025;

(f)    the Affidavit of Ray Collins dated 17 January 2025;

(g)    the Affidavit of David Eden dated 20 January 2025

(h)    the Affidavit of Katie Elaine Bourne dated 28 February 2025;

(i)    the Affidavit of Charlie Donnelly dated 2 April 2025;

(j)    the Applicant’s interlocutory application dated 3 April 2025;

(k)    the Affidavit of Geoff Borenstein dated 4 April 2025 filed by the applicant in support of its claim for the interlocutory relief referred to in the preceding paragraph;

(l)    any other document that is filed by the parties in this proceeding;

be effected, and taken to have been effected, by emailing a copy of those documents to them at the email addresses referred to in the affidavit of Geoffrey Borenstein dated 10 September 2024.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

DOWLING J

introduction and background

1    By its interlocutory application dated 4 April 2025 the applicant, the Health Services Union, seeks an order for substituted service of certain documents (and other documents to be filed by the parties) on the second, and fourth to fifteenth respondents, pursuant to rule 10.24 of the Federal Court Rules 2011 (Cth). The first and third respondents are represented and do not require an order for substituted service. I will refer, in these reasons, to the second and fourth to fifteenth respondents as the unrepresented respondents.

2    In the substantive proceeding, the Union seeks a declaration that its Victorian No. 1 Branch has ceased to function effectively and that there are no effective means under the rules of the Union to enable it to function effectively. The Union also seeks the approval of a scheme of administration to enable the Branch to function effectively. The respondents to the Union’s application are Ms Diana Asmar, the Branch Secretary, and other members of the Branch Committee of Management. There is presently an interim administrator appointed to the Branch as the result of previous orders made by me on 23 December 2024.

3    The Union seeks to effect service on the unrepresented respondents by an order that those respondents are taken to be served by the applicant sending an email to certain email addresses of each of the unrepresented respondents. As explained, the unrepresented respondents are members of the Branch Committee of Management of the Branch of the Union, and some of their email addresses are Branch email address ending in “@hwu.org.au”.

4    On 12 September 2024, I made orders for substituted service on the respondents of:

(a)    the Originating Application;

(b)    the Concise Statement; and

(c)    the accompanying affidavit of Mr Geoffrey Borenstein dated 10 September 2024 and subsequent affidavits in support of its claim for interim or interlocutory relief.

5    On 23 December 2024, I made orders for substituted service on the second, fifth, sixth, seventh, eighth, ninth, tenth, eleventh and fifteenth Respondents that:

(a)    an Amended Interlocutory Application dated 18 December 2024;

(b)    the accompanying affidavit of Emma Jayne Harper dated 17 December 2024 filed by the applicant in support of its claim for interim or interlocutory relief,

be effected and taken to have been effected by the following methods:

(a)    emailing a copy of those documents to those respondents at the email addresses referred to in the Third Affidavit of Emma Harper dated 20 December 2024; and

(b)    texting a copy of those documents to those respondents to the phone numbers referred to in the Third Affidavit of Emma Harper dated 20 December 2024.

6    All of the respondents except the fifth and sixth respondents have appointed lawyers at some stage in this proceeding.

7    The second, seventh, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth and fifteenth respondents were represented by Davies Lawyers between 19 September 2024 and 29 November 2024.

8    The eighth respondent was represented by Davies Lawyers between 17 October 2024 and 29 November 2024.

9    The fourth respondent was represented by:

(a)    Maurice Blackburn from 12 September 2024 to 19 September 2024;

(b)    Davies Lawyers from 19 September 2024 to 29 November 2024; and

(c)    Harmers Workplace Lawyers from 20 December 2024 to 30 January 2025.

10    Neither of the fifth or sixth respondents have retained lawyers, nor have they participated in the proceedings. They have been served with the proceeding and relevant documents pursuant to the substituted service orders set out above.

11    For the reasons set out below I consider it appropriate to make the order for substituted service sought by the Union.

Rule, principles and consideration

12    The material the subject of this application does not require personal service, but the substituted service order is sought to ensure that the material is properly and effectively brought to the attention of the unrepresented respondents. Rule 10.24 of the Rules provides for substituted service where it is not practicable to serve a person in the ordinary way.

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

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.

14    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.

15    In Ross v Cotter [2015] FCA 310, Reeves J held (at [1]) the word “practicable” in the expression “not practicable”, “has been held to have a wide meaning which will depend on the circumstances of the particular proceeding”.

16    To support their application for substituted service, the Union relies on:

(a)    First Affidavit of Geoff Borenstein dated 10 September 2024;

(b)    Third Affidavit of Emma Harper dated 20 December 2024; and

(c)    Eleventh Affidavit of Geoff Borenstein dated 4 April 2025.

17    The Union submits that it is not practicable to serve the documents in the ordinary way because: First, it does not have a home address for all of the unrepresented respondents. Second, the only point of contact it has for all the unrepresented respondents is the Branch or other email addresses. Third, in respect of two of the unrepresented respondents for which it does have a home address, service was attempted by use of that home address and failed. Fourth, in all of the other circumstances of this case, it is not practicable to serve in the ordinary way.

18    I am satisfied, on the material, and in the circumstances, before me that it is not practicable to serve the documents in the ordinary way. I am satisfied of those matters at [17](1) – (3) above. Further, this matter is to be heard in relatively expedited and urgent circumstances, supporting the need for such an order.

19    The Union says additionally that service by means of the Branch and other email addresses would be more effective than personal service in the present circumstances. The method of substituted service should be one in which in all reasonable possibility, if not certainty, will bring knowledge of the process to the respondent: see Royal Express Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) v Huang, in the matter of Royal Express Pty Ltd (No 3) [2021] FCA 611 at [12] and the cases there cited.

20    The material before me demonstrates that the Branch and other email addresses were an effective method of service, and effectively brought the material to the attention of the unrepresented respondents, when they were used previously in this proceeding.

21    I am satisfied that the Branch and other emails will in all possibility, if not certainty, bring knowledge of the documents to the unrepresented respondents.

Disposition

22    In all of the circumstances I am satisfied that it is appropriate to make an order for substituted service. I am satisfied that it is appropriate to order that substituted service be effected by sending an email to the unrepresented respondents’ Branch and other email addresses contained in the affidavit of Mr Borenstein dated 10 September 2024.

Associate:

Dated:    30 April 2025

SCHEDULE OF PARTIES