Australian Building and Construction Commissioner v Windus

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Windus [2019] FCA 1526

File number:

WAD 185 of 2019

Judge:

JACKSON J

Date of judgment:

13 September 2019

Catchwords:

PRACTICE AND PROCEDURE - application for substituted service - personal service not practicable - reasonable possibility that proposed methods will place recipient on notice - application granted

Legislation:

Fair Work Act 2009 (Cth) s 562

Federal Court Rules 2011 (Cth) rr 10.24, 15.08

Cases cited:

British American Tobacco Australasia Limited v Taleb (No 1) [2012] FCA 1065

Combis (Trustee) v Spottiswood [2011] FCA 1082; (2011) 123 ALD 40

Commissioner of Taxation v Caratti (No 2) [2018] FCA 1500

Statewide Secured Investments Pty Ltd v Tarrant [2011] FCA 1067

Date of hearing:

13 September 2019

Registry:

Western Australia

Division:

Fair Work Division

National Practice Area:

Employment & Industrial Relations

Category:

Catchwords

Number of paragraphs:

9

Counsel for the Applicant:

The applicant was excused from appearing

Solicitor for the Applicant:

Herbert Smith Freehills

Counsel for the Cross‑Claimants:

Ms JR Moore

Solicitor for the Cross‑Claimants:

Eureka Lawyers

Counsel for the Cross‑Respondents:

The cross‑respondents were excused from appearing

Solicitor for the Cross‑Respondents:

King & Wood Mallesons

ORDERS

WAD 185 of 2019

BETWEEN:

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

Applicant

AND:

JOHN WINDUS

First Respondent

STEPHEN PARKER

Second Respondent

CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION

Third Respondent

AND BETWEEN:

CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION

First Cross‑Claimant

JOHN WINDUS
Second Cross‑Claimant

STEPHEN PARKER
Third Cross‑Claimant

AND:

SKS GROUP PTY LTD (ACN 122 565 262)

First Cross‑Respondent

THAYALAN KRISHAN
Second Cross‑Respondent

BENJAMIN SIPKES
Third Cross‑Respondent

NICHOLAS WARD
Fourth Cross‑Respondent

JUDGE:	JACKSON J
DATE OF ORDER:	13 SEPTEMBER 2019

THE COURT ORDERS THAT:

1.The cross‑claimants' interlocutory application dated 1 August 2019 is allowed.

Substitution of the first cross‑respondent

2.Pursuant to r 9.08 of the Federal Court Rules 2011 (Cth) (Rules), SKS Group Pty Ltd (ACN 122 565 262) is removed as the first cross‑respondent.

3.Pursuant to r 9.05(1) of the Rules, SKS Builders Pty Ltd (ACN 163 340 181) is joined to the proceedings and substituted as the first cross‑respondent.

4.The cross‑claimants are granted leave to file and serve an amended notice of cross‑claim and an amended statement of cross‑claim substituting SKS Builders Pty Ltd (ACN 163 340 181) as the first cross‑respondent by no later than 16 September 2019.

Substituted service on the third cross‑respondent

5.Pursuant to r 10.24(b) of the Rules:

(a)each of the notice of cross‑claim and statement of cross‑claim filed in these proceedings (Cross‑claim Documents) may be served and be brought to the attention of the third cross‑respondent by:

(i)sending a text message to the telephone number given in paragraph 6 of the affidavit of Nicola Iannetta affirmed 10 September 2019 in these proceedings stating as follows:

Dear Mr Sipkes

A cross‑claim in proceeding WAD 185 of 2019 has been commenced against you in the Federal Court of Australia by the Construction, Forestry, Maritime, Mining and Energy Union, Stephen Parker and John Windus alleging breaches of the