Federal Court of Australia

LFDB v SM (No 5) [2025] FCA 654

ORDERS

THE COURT ORDERS THAT:

1. Pursuant to r 10.24 of the Federal Court Rules 2011 (Cth), the applicants be granted leave to serve the interlocutory application, filed on 25 February 2025, and accompanying affidavit of Michael Chapman, dated 13 February 2025, by causing such documents to be sent together with a copy of this order to:

(a) the email address ______________;

(b) Taylor David Lawyers at the email address c.hagon@taylordavid.com; and

(c) Marque Lawyers at the email address damians@marquelawyers.com.au.

2. Pursuant to r 10.24 of the Rules, service shall be taken to have been effected on the respondent 14 days after the steps in order 1.

3. Costs be reserved.

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

REASONS FOR JUDGMENT

YOUNAN J:

1 In early 2009, the first applicant (LFDB) and respondent (SM) separated, triggering protracted litigation across multiple jurisdictions concerning relationship property.  The present dispute concerns the registration in this Court of two New Zealand High Court judgments, delivered on 26 November 2015, pursuant to s 68 of the Trans-Tasman Proceedings Act 2010 (Cth) (TPP Act).

2 The applicants previously sought, unsuccessfully, to set aside the judgments’ registration under s 72 of the TPP Act:  LFDB v SM (No 3) [2017] FCA 80 and LFDB v SM [2017] FCAFC 178.  In the latest instalment, the applicants have filed an interlocutory application seeking access to documents regarding the judgments’ registration (Access Application), having been refused access by a Registrar of this Court.

3 By interlocutory application filed on 28 March 2025, the applicants seek an order for substituted service on the respondent, pursuant to r 10.24 of the Federal Court Rules 2011 (Cth) (Substituted Service Application).  The applicants rely on the affidavits of Michael Rowallan Chapman, dated 26 March 2025 and 16 June 2025, in support of the application. In those supporting affidavits, and in written submissions, the applicants also refer to two affidavits of Daniel Brian Parr, dated 24 April and 13 May 2025.

1. LEGAL FRAMEWORK

1.1 Rule 10.24 – Practicability of service

4 Rule 10.24 of the Rules 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.

5 In determining whether it is practicable to serve a document under r 10.24, it is not necessary to prove that it is impossible or futile to effect personal service:  Ford, in the matter of Careers Australia Group Ltd (in liq) v Mansfield [2022] FCA 173 at [14] (O’Bryan J).  Instead, the applicant for orders for substituted service need only demonstrate that it is not sensible or realistic to effect personal service, even though it is possible or feasible to do so:  Commissioner of Taxation v Caratti (No 2) [2018] FCA 1500 at [10] (Colvin J).

6 The Court must be satisfied that there is a proper evidentiary basis upon which to conclude that the proposed method of service would likely bring the relevant documents to the intended recipient:  Caratti at [10]; see also Deng v Qi, in the matter of Qi [2023] FCA 589 at [8].

7 It is not necessary to adduce evidence of a failed attempt at personal service:  Federal Commissioner of Taxation v Zeitouni [2013] FCA 1011; (2013) ALR 603 at [66] (Katzmann J).  However, attempts to contact the intended recipient and knowledge (or lack thereof) of the intended recipient’s location are relevant to the question of practicability:  Ross v Cotter [2015] FCA 310 at [2] (Reeves J); Kosmos Capital Pty Ltd v Turiya Ventures LLC [2019] FCA 528 at [50] (Jackson J).

1.2 Rule 10.49 – Ability to serve

8 The applicant has not put on any evidence about the whereabouts of the respondent.  The litigation history indicates that the respondent may be in a foreign country.  Rule 10.49 provides for substituted service if the intended recipient is in a foreign country.  It provides:

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.

9 In circumstances where the intended recipient is outside Australia, this Court has accepted that an order for substituted service may be made under either r 10.24 or r 10.49:  Australian Information Commission v Facebook Inc [2020] FCA 531; (2020) 144 ACSR 88 at [65] (Thawley J) citing Zeitouni at [60].  That is not to say that the conditions of application are the same.

10 This is pertinent in the present case in which the whereabouts of the respondent is unknown.  Consequently, in the event that the respondent is located overseas, given reliance on r 10.24, it is not necessary for the applicant to demonstrate either:

(1) that the respondent is outside Australia; or

(2) that service on the respondent was unsuccessful.  Rule 10.24 is concerned with the practicability of service, although the question may be informed by the difficulty or inability to effect personal service.

1.3 Efficacy of service

11 It has been held that an order under r 10.24 “must be based on a reasonable probability that it will inform the person served as a result of the form of service identified”:  Statewide Secured Investments Pty Ltd v Tarrant [2011] FCA 1067 at [10].  The same principle is identifiable in r 10.49(b), in the requirement that the applicant specify the steps taken to bring the document to the attention of the person to be served.

12 Where experience has shown that a particular method of communication has resulted in material being brought to the attention of the person to be served, an order for substituted service according to that method will be likely to achieve the same result:  Australian Communications and Media Authority v Jones [2022] FCA 546 at [5], citing Australian Building and Construction Commissioner v Windus [2019] FCA 1526 at [8].

2. ATTEMPTS TO SERVE THE RESPONDENT

13 On 14 March 2016, Griffiths J made suppression orders pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth).  The orders permanently suppress:

the names of the parties in the proceedings; and

any other information that could identify the respondent, including her occupation, employment, history and health (identifying information),

whether in these proceedings, in any related proceedings, or otherwise.

14 The applicants submit that it is not “possible, feasible, sensible or realistic” to personally serve the respondent because:

(1) The suppression orders made by Griffiths J restrict the applicants from knowing the respondent’s identifying information.

(2) The first applicant has been refused access to documents in this matter’s electronic Court file, which might identify the lawyers who acted for the respondent in 2015 and who may continue to act for the respondent.

2.1 Not feasible to serve legal representatives

15 The applicants submit that they attempted to contact the respondent through Marque Lawyers, the firm the applicants understood to have been acting for the respondent in a past, related matter, for the purposes of enquiring as to whether they could provide the documents the subject of the Access Application.

16 On 21 November 2024, the solicitor for the first applicant wrote to Marque Lawyers, asking them, inter alia, to confirm whether they still acted for the respondent, and requesting provision of certain documents in redacted form.

17 On 4 December 2024, Marque Lawyers confirmed that they acted for the respondent, and requested further information in order to properly advise their client.

18 On 9 January 2025, following further email correspondence with solicitors for the first applicant, Marque Lawyers confirmed that the respondent did not intend to provide the requested documents, and that they “do not have instructions to accept service of any application”.

19 The applicants submit that it is on this basis that it is not possible or feasible to serve the Access Application and supporting affidavit on Marque Lawyers in order to effect service on the respondent.  However, the applicants submit that from this correspondence, it is clear that the respondent is aware of the nature of the application and the documents sought in the Access Application.  The applicants submit that the respondent has given instructions to Marque Lawyers in relation to the (then) foreshadowed application and has “not given instructions” to accept service of the application.

2.2 Attempted service on legal representatives in related proceedings and email address

20 The applicants further submit that they have attempted service on the respondent on 12 March 2025 through Taylor David Lawyers, a firm appearing to act for the respondent in related proceedings.  A representative of the firm responded on 13 March 2025, confirming that they neither held instructions to act for the respondent in the present proceeding, nor to accept service of the Access Application on her behalf.

21 On 16 June 2025, the applicants filed a further affidavit in support of the Substituted Service Application.  The affidavit alerts the Court to a current proceeding in this Court (to which reference is made in the affidavit of Mr Chapman of 26 March 2025, identifying Taylor David Lawyers as the respondent’s legal representative) in which it is said that the respondent is “actively participating” and a co-defendant with the first applicant.  Orders for suppression of the respondent’s identifying information have been made in that proceeding, including the grant of a pseudonym.  While the applicants note that these are relevant matters for the Court to consider regarding the Substituted Service Application, no submission is made as to how that information should inform my consideration of the application.  On the evidence before me, the position remains that the respondent’s legal representatives in that proceeding do not hold instructions to accept service of the Access Application on their client’s behalf.

22 The applicants submit that, on 26 March 2025, they attempted service through a publicly available (and last known) email address of the respondent (respondent’s email address).  No response from the respondent was received, although the first applicant’s solicitor received a relay receipt from Microsoft Outlook indicating that: “Delivery to these recipients or groups is complete, but no delivery notification was sent by the destination server”.

23 Further attempts were made to contact the respondent via this email address (on 15 April and 12 May 2025), with the same result.

3. ORDER FOR SUBSTITUTED SERVICE

24 Pursuant to r 10.24 of the Rules, I am satisfied that it is not practicable to serve the interlocutory process and accompanying affidavit personally on the respondent, notwithstanding (and given):

(1) the attempts to serve those documents on the respondent by means of:

(a) the respondent’s email address; and

(b) her lawyers in a related proceeding;

(2) the response to those attempts at service; and

(3) otherwise, the response received to further attempts to contact the respondent via her email address.

25 It is not apparent that those attempts have been successful.  The difficulty with this lack of success is that, while it reinforces the impracticability of serving the respondent in the usual way, it does not support a claim that the methods of communication used are likely to bring the documents (to be served) to the respondent’s attention.

26 In that regard, Marque Lawyers have confirmed that they act for the respondent (albeit in unrelated proceedings), and that they do not have instructions to accept service of any application.

27 The applicants have indicated that they have not attempted service on Marque Lawyers on the basis that the respondent has “not given instructions” to accept service of the application.  However, the correspondence of Marque Lawyers indicates that the respondent’s lawyers “do not have instructions to accept service of any application”.  It is not evident whether that is a reference to the absence of instructions or positive instructions not to accept service.  In any event, I consider it more likely that the documents to be served will be brought to the respondent’s attention if they are served (also) on Marque Lawyers, who appear to be in receipt of instructions from the respondent, and therefore in communication with her.

28 On that basis, I make orders pursuant to r 10.24 of the Rules that the interlocutory application, filed on 25 February 2025, and accompanying affidavit shall be taken to have been served 14 days after those documents are sent to the respondent’s email address, and to Taylor David Lawyers and Marque Lawyers via their respective email addresses.

Associate:

Dated:    20 June 2025

SCHEDULE OF PARTIES