Bartlett v Goodwin
[2021] FCCA 1871
•12 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Bartlett v Goodwin [2021] FCCA 1871
File number(s): ADG 371 of 2020 Judgment of: JUDGE BROWN Date of judgment: 12 August 2021 Catchwords: INDUSTRIAL LAW – fair work – claim for unpaid leave entitlements – service of documents – international service – service outside the Commonwealth of Australia – United States of America – accessorial liability of current respondents following an undefended hearing – application of the Federal Circuit Court Rules 2001 (Cth) and Federal Court Rules 2011 (Cth) in relation to service Legislation: Acts Interpretation Act 1901 (Cth), s 38
Corporations Act 2001 (Cth), s 471B
Fair Work Act 2009 (Cth), s 550
Federal Circuit Court of Australia Act 1999 (Cth), ss 14, 15, 81
Federal Circuit Court Rules 2001 (Cth), rr 1.05, 6.06, 6.14, 6.15
Federal Court of Australia Act 1976 (Cth), s 59
Federal Court Rules 2011 (Cth), Div 10.4, rr 10.42, 10.43, 10.48
Cases cited: Bartlett v Signostics Ltd (in liq) [2019] FCCA 2989
Commissiner of Taxation v Zeitouni & Ors (2013) 138 ALD 294
Electrolux Home Product Pty Ltd v Delap Impex Limited & Ors [2013] FCA 600
Emanuele v Australian Securities Commission (1997) 188 CLR 114
Morris v McConaghy Australia Pty Ltd [2018] FCCA 435
Sanum Investments Limited v ST Group Co Ltd (No 2) [2019] FCA 1047Number of paragraphs: 76 Date of hearing: 5 July 2021 Place: Adelaide Solicitor for the Applicant: Bartlett Workplace Lawyers and Consultants Counsel for the Applicant: Mr Rice Solicitor for the First Respondent: No Appearance Solicitor for the Second Respondent: No Appearance Solicitor for the Third Respondent: No Appearance Solicitor for the Fourth Respondent: No Appearance ORDERS
ADG 371 of 2020 BETWEEN: STEWART BARTLETT
Applicant
AND: KEVIN GOODWIN
First Respondent
YOON SHIN
Second Respondent
DAVID KEOGH (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
12 AUGUST 2021
UPON NOTING THAT
1.The third respondent, David Keogh (‘the third respondent’) has been given ample notice of, and was served with these proceedings relating to service and accessorial liability of the respondents.
2.The third respondent has accordingly, filed a response dated 11 February 2021, but has since elected to not participate in the action.
3.Pursuant to rule 10.48 of the Federal Court Rules 2011 (Cth) (‘the Federal Court Rules’), service is deemed to have been effected on the third respondent.
THE COURT ORDERS THAT:
4.Pursuant to rule 6.14 of the Federal Circuit Court Rules 2001 (Cth) (‘the Federal Circuit Court Rules’), the Court dispenses with the need to require the applicant, Stewart Bartlett (‘the applicant’) to serve Kevin Goodwin, Yoon Shin and EchoNous Inc. (hereinafter referred to as ‘the first, second and fourth respondents’) personally with:
(a)the Application – Fair Work Division filed 9 December 2020; and
(b)Form 4 - Claim under the Fair Work Act 2009 (Cth) (‘the FWA’) alleging contravention of a general protection filed 9 December 2020 (together referred to as ‘the Court Documents’).
5.In lieu of such personal service, that the applicant be granted leave to serve the first, second and fourth respondents with the Court Documents together with a copy of these orders and reasons for judgment that were filed in this Honourable Court as follows:
(a)to the first respondent:
(i)by scanning the Court Documents and sending them by email to [email protected]; and
(ii)by delivering the Court Documents by international express post addressed to the first respondent at 323, First Street, Kirkland, Washington 98033, United States of America.
(b)to the second respondent:
(i)by scanning the Court Documents and sending them by email to [email protected]; and
(ii)by delivering the Court Documents by international express post addressed to the second respondent at 323, First Street, Kirkland, Washington 98033, United States of America and 8310, 154th Avenue NE STE 200, Redmond, Washington 98052, USA; and
(c)to the fourth respondent:
(i)by scanning the Court Documents and sending them by email to [email protected]; and
(ii)by delivering the Court Documents by international express post addressed to the fourth respondent at 8310, 154th Avenue NE, Suite 200, Redmond, Washington 98052, United States of America.
6.The methods of service in accordance with order (5) hereof shall be deemed good and sufficient service of the Court Documents upon the first, second and fourth respondent.
7.Service of the Court Documents is deemed to have been effected on the first, second and fourth respondents fourteen (14) days after compliance with each paragraph of order (5) hereof.
8.The first, second and fourth respondent is directed to file a response and affidavit in support within forty-two (42) days of the date of these orders.
9.A copy of these orders and reasons for decision be provided in electronic form to the last known address of the third respondent.
10.Costs of and incidental to this Application be reserved.
11.The proceedings are adjourned until 8 October 2021 at 9:30 am for directions.
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
These reasons for judgment are directed towards resolving issues that arise from service in respect of respondents, who are resident outside of the Commonwealth of Australia. Each of the respondents in question are resident in the United States of America.
Stewart Gavin Bartlett (‘the applicant’) was employed as the Chief Operating Officer of Signostics Proprietary Limited (‘Signostics’) between 1 January 2005 and 11 August 2017. He claims to be owed monies due to him by Signostics for unpaid annual leave; unpaid salary payments; and various other incentive payments due to him under his contract of employment with Signostics.
Signostics was placed into voluntary liquidation, on the resolution of its sole shareholder, EchoNous Incorporated (‘EchoNous’). EchoNous is a company based in Washington State, in the United States of America, but was incorporated in the state of Delaware. Signostics entered into liquidation on 28 February 2018.
Mr Bartlett commenced proceedings, in this Court, seeking remedies against Signostics, prior to its liquidation, pursuant to the provisions of the Fair Work Act 2009 (Cth) (‘the FWA’). He also invoked the accrued jurisdiction of this Court, to pursue his contractual disputes with the company.
Given the liquidation of Signostics, in order to be able to continue with his claim against it, Mr Bartlett required the leave of the Federal Court, pursuant to the provisions of section 471B of the Corporations Act 2001 (Cth), to proceed.
Middleton J granted such leave on 13 June 2019. The liquidator of Signostics is Mr Anthony Phillips. He indicated that he did not intend to defend the proceedings brought by Mr Bartlett against Signostics.
Following an undefended hearing on 21 October 2019, Judge Heffernan, who was formerly a judge of this Court, directed that Signostics pay a pecuniary penalty fixed in an amount of $110,000.00 together with damages in an amount of $250,112.67. The first sum relates to penalties fixed by His Honour arising from breaches of the provisions contained in the FWA. Additionally, the second sum represented damages in respect of a breach of contract. Both sums were to be paid directly to Mr Bartlett. At present, each amount remains outstanding.
On 9 December 2020, the applicant commenced proceedings, again in this Court, against Kevin Goodwin, Yoon Shin, David Keogh and EchoNous. The applicant claims that each had accessorial liability for the contraventions established against Signostics, pursuant to the provision of section 550 of the FWA, given the judgment of Judge Heffernan.
Essentially, Mr Bartlett wishes to recoup some or all of the sums awarded in his favour from each of the respondents to his current application. He asserts that this is a consequence of their involvement in the various contraventions arising under the FWA established by Judge Heffernan.
Mr Goodwin was a director of Signostics and is currently a director and the Chief Executive Officer of EchoNous. Ms Shin is the Chief Legal Counsel and Company Secretary of EchoNous. Mr Goodwin held a similar position in Signostics, prior to its liquidation. Both Mr Goodwin and Ms Shin are residents of Washington State.
Mr Keogh was previously a director of Signostics, and is currently a director of EchoNous. He is a resident of New South Wales and was served with Mr Bartlett’s current application on 19 December 2020. Solicitors acting on his behalf have filed a Response dated 11 February 2021, in which he seeks the summary dismissal of Mr Bartlett’s action, on the basis that it is invariably an abuse of process; does not disclose a course of action against him; and/or it has no reasonable prospect of success.
THE CURRENT APPLICATION IN A CASE
On 21 April 2021, Mr Bartlett filed an Application in a Case, where he seeks that his application filed on 9 December 2020 is either deemed to have been served on Mr Goodwin, Ms Shin and EchoNous, or that in lieu of personal service, the application be served by electronic means and/or international express post delivered to the last known electronic and business addresses of each of Mr Goodwin, Ms Shin and EchoNous.
There is no doubt that Mr Keogh knows of these proceedings, as he has instructed solicitors in respect of them. Mr Bartlett’s solicitors enquired of Mr Keogh’s solicitors as to whether or not they would be prepared to accept service on behalf of Mr Goodwin, Ms Shin and EchoNous. They do not apparently have such instructions.
In support of his application in respect of service, Mr Bartlett relies on the following documents:
·An Affidavit sworn by him on 20 April 2021;
·An Affidavit of his solicitor, Hui Ong sworn 22 April 2021;
·A further Affidavit of Ms Ong filed 12 May 2021; and
·A further Affidavit sworn by him on 2 July 2021.
In his first Affidavit, Mr Bartlett deposes that Ms Shin sent correspondence to his Australian solicitor, indicating that she represented the directors of EchoNous. In this correspondence, Ms Shin further indicated that issues relating to Mr Bartlett had been directed to the company’s Australian counsel, which were later identified as McCullough Robertson.
On 25 February 2020, Mr Bartlett’s solicitors received a letter from McCullough Robertson, which stated as follows (inter alia):
We act for EchoNous Inc and its officers and board of directors, including Ms Yoon Shin, Mr Kevin Goodwin and Mr David Keogh.[1]
[1] Letter from McCullough Robertson dated 25 February 2020.
Mr Phillips, as previously indicated, the liquidator of Signostics, has also apparently corresponded with McCullough Robertson as well as with Mr Keogh and Mr Goodwin, by mail. The liquidator has sent a letter of demand to Mr Goodwin and Mr Keogh seeking reimbursement of claims made against the liquidation said to relate to Mr Bartlett’s employment with Signostics.
Accordingly, on balance, it seems more probable than not, that the directors of EchoNous are aware of both the outcome of the undefended proceedings before Judge Heffernan and the current proceedings instituted by Mr Bartlett, which raise issues of accessorial liability.
In her Affidavit, filed 22 April 2021, Ms Ong deposed that she forwarded Mr Bartlett’s current application, to Mr Goodwin, Ms Shin and EchoNous, by the following means:
·By electronic means, to the firm of solicitors currently acting for Mr Keogh;
·To Mr Goodwin at his postal address in Washington, USA;
·To Ms Shin at her postal address in Washington, USA;
·To EchoNous Inc. at its registered address in Washington, USA by post;
·By hand at the offices of Mr Keogh’s solicitors in Melbourne;
·By email to Mr Goodwin and Ms Shin.
Ms Ong further deposed that none of her correspondence has been returned to her or, in the case of the electronic correspondence, it had not bounced back.
Mr Bartlett’s current application came before the Court on 22 March 2021. On that occasion, I directed that any application to be brought, under either the rules of this Court or the rules of the Federal Court, regarding the service of process on persons in a foreign country, should be commenced prior to 15 April 2021.
These orders were made in the presence of counsel for Mr Keogh, who submitted that the applicant had not satisfied the relevant regulatory regime for service on an overseas party. However, neither Mr Keogh, nor anyone representing Mr Goodwin, Ms Shin or EchoNous has elected to respond to Mr Bartlett’s application for either deemed or substituted service filed on 21 April 2021.
At this juncture, any potential controversies arising between the various parties concerned, relate to the interaction between the Federal Circuit Court Rules 2001 (Cth) (‘the Federal Circuit Court Rules’) and the Federal Court Rules 2011 (Cth) (‘the Federal Court Rules’). As a consequence, I will endeavour to outline the various provisions applicable.
APPLICABLE LEGAL PRINCIPLES
It is a necessary requirement of procedural fairness that parties, who are likely to be affected by any order made by the Court, are given notice of the proceedings which may potentially affect their interests. For this reason the Federal Circuit Court Rules provide a formal regime dealing with the mechanisms of service. These rules do not specifically deal with service outside of the Australia. The Federal Court Rules do.
Given the potential significance of any document which institutes proceedings in a federal court, the ordinary or usual rule regarding service is that any such document should be directly provided to any individual person concerned. As such, Rule 6.06(1) of the Federal Circuit Court Rules requires the service by hand of any application starting a proceeding in the Court. If a respondent to a proceeding is a corporation, such service by hand, can be achieved by leaving a copy of the relevant document with a person who is an apparent officer of the relevant corporation.
Accordingly, on a prima facie basis, Mr Bartlett is required to personally serve Mr Goodwin, Ms Shin and EchoNous with his application, filed in the Court, on 9 December 2020. However, pursuant to Rule 6.14 of the Federal Circuit Court Rules, if it is impracticable to serve a document by hand, the Court may specify steps to bring the relevant process to the attention of the person to be served in substitution of any requirement for personal service.
The discretion conferred upon the Court by Rule 6.14 is qualified by a number of considerations specified in Rule 6.15, which are as follows:
•Whether reasonable steps have been taken to attempt to serve the document;
•Whether it is likely steps, that have been taken, have brought the existence in nature of the process to the attention of the person to be served;
•Whether the person to be served could become aware of the process by means of advertising or another means of communication that is reasonably available;
•The likely cost to the party serving the document in question in the context of the means of that party and the nature of the proceedings concerned; and
•Any other relevant matter.[2]
[2] Federal Circuit Court Rules 2001 (Cth) r 16.15.
Accordingly, it is a pre-requisite of any application to dispense with personal service that it is impractical for the process to be personally served. Impractical is an ordinary English word. It is the opposite of practical, the definition of which includes possible in practice.
It does not mean impossible. The expression has also been the subject of judicial consideration, in a number of cases, to which I will return, in the context of the potential application of the provision of the Federal Court Rules to this issue.
Impracticality, in respect of service, is usually established by demonstrating firstly that a diligent attempt has been made to devise a mechanism, through which the initiating process can be brought to the attention or awareness the person required to be personally served and secondly diligent efforts have been made to engage the mechanism so devised.
Thereafter, prior to the dispensation of service, the Court must be satisfied that the relevant process has been brought to the attention of the person to be served. Essentially, the method of substituted service has been effective in practical terms, such that a party ordinarily required to be personally provided with a physical copy of any initiating process has had the proceeding brought to their attention through an alternative means.
In my view, this is the more important requirement, given its nexus to issues of procedural fairness, particularly the entitlement of a person affected by any orders sought to be given notice of the proceedings against them. The mode of substituted service that is selected must be effective.
In this particular case, evidence has been provided of the steps that have been taken by Mr Bartlett’s solicitors to bring the proceedings to the attention of Mr Goodwin, Ms Shin and EchoNous. These steps have included the use of both orthodox international post; electronic means; and personal service of process on their former legal advisors.
In addition, there is no doubt that Mr Keogh, the Australian-based director of both EchoNous and Signostics, has been personally served with the application in question and, as such, in my view, it is not an unreasonable inference to draw that he will have informed his co-directors of the proceedings.
In my view, it is likely that the steps taken by those advising Mr Keogh would have brought his application to the attention of Mr Goodwin, Ms Shin and necessarily EchoNous. In this context, it seems to me to be the case that those individuals are likely to become aware of the existence of these proceedings by means of the various forms of electronic communication, engaged by Mr Bartlett’s solicitor and which are likely to be reasonably available to each of the respondents.
I have not been provided with any evidence, as to the likely cost to be incurred to Mr Bartlett, arising from the documents in question being conveyed to Washington State and served personally on each of the parties concerned by some appropriate official, such as a bailiff or process service.
As previously indicated, the Federal Circuit Court Rules do not specifically deal with the service of process outside of Australia. However, pursuant to Rule 1.05(2), if the Court’s rules are either insufficient or inappropriate to deal with any rule of practice arising, the Court is authorised to apply any relevant provision of the Federal Court Rules.
In the context of the current matter, Division 10.4 of the Federal Court Rules deals specifically with issues pertaining to service outside of Australia. In particular, Rule 10.42 provides that an originating application, may be served on a person in a foreign country, in respect of anyone of a number of designated types of proceedings.
These include proceedings based on a cause of action arising in Australia; the proceedings based on a breach of contract in Australia; and proceedings based on a contravention of an Act of the Commonwealth that is committed in Australia.[3]
[3] See Acts Interpretation Act 1901 (Cth) s 38.
In this matter, I am satisfied that Mr Bartlett’s cause of action arose in Australia. In particular, on a prima facie basis, it would appear to be the case that his contract with Signostics was made in Australia and he performed his duties, pursuant to that contract, in this country and accordingly, from his perspective, its provisions were breached here.
In addition and significantly, he has engaged the provisions of the FWA and alleges that each of the overseas parties has committed a contravention of that Act, which occurred in Australia. This relates to the allegation that he was not paid his leave entitlements and other entitlements arising from the National Employment Standards, which are referenced in the FWA.
Rule 10.43(1) of the Federal Court Rules requires any person seeking to serve an originating application, on a person in a foreign country, to seek leave from the Court prior to service. In this context, pursuant to Rule 10.43(3) any such leave application must be accompanied by an Affidavit setting out the following matters:
•The name of the foreign country involved;
•The proposed method of service; and
•Whether the proposed method of service is permitted by the laws of the foreign country concerned or is governed by the provisions of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965.[4]
[4] Hereinafter referred to as ‘The Hague Convention’.
Clearly, Mr Bartlett has not sought such leave. However, pursuant to Rule 10.43(6), he is entitled to apply to the Court for an order confirming service, notwithstanding leave has not been granted, if evidence is provided that satisfies the Court of the following matters:
•The Court has jurisdiction in the proceedings;
•The proceedings are authorised by Rule 10.42;
•A prima facie case has been established for all or any of the relief claimed in the proceedings;
•Service was permitted by either the Hague Convention or the laws of the foreign country concerned;
•An explanation is provided for the failure to seek leave.[5]
[5] Federal Court Rules 2011 (Cth) r 10.43(6).
In the current matter, Mr Bartlett has obtained a judgment against Signostics, of which each of the overseas parties was previously a director. In addition, the liquidator of Signostics has indicated a view that Mr Goodwin had some level of personal liability in respect of Mr Bartlett’s unsatisfied judgment debt, as a consequence of his directorship of the company and his involvement in its management.
In order to establish a prima facie case, Mr Bartlett must establish, on the ex-parte material currently before the Court, that he is entitled to the relief sought by him. The requirement has been described as being not particularly onerous, in the sense that it does not call for a substantial enquiry.[6]
[6] See Morris v McConaghy Australia Pty Ltd [2018] FCCA 435 at [29]-[30] (Rares J).
In the earlier proceedings before Judge Heffernan, His Honour found that Signostics was subject to the National Employment Standards and Mr Bartlett was its employee. It was further found that Mr Bartlett had been underpaid his wages and leave entitlements, and this opened the company to potential civil remedy proceedings under the FWA.
Given the relationship of Mr Goodwin and EchoNous, as directors of Signostics Ltd and given that EchoNous was Signostics’ primary, if not sole, shareholder, it seems to me that Mr Bartlett has established a prima facie case that they have some level of accessorial liability pursuant to the provisions of section 550(2) of the FWA.
Clearly, Mr Bartlett has not sought to invoke the assistance of the Hague Convention to have his application served through the Central Authority in the United States of America. In addition, he has provided no evidence regarding the laws, as to service, in the USA. In addition, at this juncture, there is no contradictor, to the arguments he has advance in the case regarding to service, given that Mr Keogh’s solicitors, who have had some prior involvement with the case to date, have elected not to appear.
In this context, the Federal Court Rules, provide a provision which enables a party to apply for deemed service, notwithstanding the fact that the formalities of service overseas, provided by the Rules, have not been complied with. In particular, Rule 10.48 reads as follows:
A party may apply to the Court without notice for an order that a document is taken to have been served on a person on the date mentioned in the order if:
(a) it is not practicable to serve the document on the person in a foreign country in accordance with a convention, the Hague Convention or the law of a foreign country; and
(b) the party provides evidence that the document has been brought to the attention of the person to be served. [7]
[7] See Federal Court Rules 2011 (Cth).
In my view, it would be unduly semantic to reach any other conclusion than the words impractical and not practicable are anything other than synonymous. Accordingly, as with other aspects of service, it is open to the Court to deem that an overseas party has been served with process, in the absence of personal service.
In addition, it is open to the Court, in these circumstances, to direct a method of substituted service to ensure that the party concerned has had the relevant process brought to its attention.
Finally, pursuant to the provisions of Rule 10.43(6), it is open to a person, who has served a person in a foreign country, without first obtaining the leave of the Court, to apply to the Court for an order confirming such service.
Unlike the Federal Court, which holds specific legislative authority to make rules in respect of service of its process outside of Australia,[8] the Federal Circuit Court is only empowered, in general terms, to make rules in respect of its own practice and procedure.[9]
[8] See Federal Court of Australia Act 1976 (Cth) s 59(2)(g).
[9] See Federal Circuit Court of Australia Act 1999 (Cth) s 81.
However, pursuant to section 15 of the Federal Circuit Court of Australia Act 1999 (Cth) (‘the FCC Act’) the Court is empowered to make whatever orders, including interlocutory orders, as it thinks appropriate. In addition, section 14 of the Federal Circuit Court Act authorises the Court to grant all remedies to which any of the parties before it appear to be entitled to in respect of a legal or equitable claim properly brought forward.
In these circumstances, notwithstanding its lack of specific authority to make rules regarding overseas service but given the Court’s overall jurisdiction and entitlement to adopt the provisions of the Federal Court Rules, if there is lacuna, in its own rules, I am satisfied that this Court has sufficient authority to make an order in respect of the service of its process on an overseas party.
In this context, the major question for the Court is whether it is not practicable for the relevant process to be personally served on Mr Goodwin, Ms Shin and EchoNous. In tandem, with this issue, is the question of whether the process, in question, has been or could be brought to the notice of each of those individuals, notwithstanding none of them has been personally served through the various channels advanced by Mr Bartlett’s solicitors.
In Sanum Investments Limited v ST Group Co., Ltd (No 2),[10] Foster J held as follows:
[I]n order to prove that service is impracticable, an applicant is not required to provide that it is impossible or futile to effect service as required. In addition, in the context of r 10.48 FCR, an applicant for relief under that rule is not required to undertake service in accordance with the strict requirements of the relevant law before seeking relief pursuant to r 10.48. It should be also be remembered that, although mere inconvenience may not be enough to constitute “impracticability”, r 10.48 FCR is intended to ameliorate the stultification of cases against foreign defendants caused by unduly cumbersome and uncertain set of requirements governing service of this Court’s process in a foreign country. In my judgment, once this court is satisfied that its process and other documents have come to the attention of foreign defendants, it should not hesitate to deem service to have been effective if there is any suggestion that the law of the relevant foreign country as to service will unreasonably delay or even frustrate the progress of the proceeding.[11]
[10] See Sanum Investments Limited v ST Group Co Ltd (No 2) [2019] FCA 1047.
[11] Ibid at [148] (Foster J).
It seems to me, on balance, that the process in question has come to the attention of Mr Goodwin, Ms Shin and EchoNous through one of the various conduits of service outlined by Ms Ong. In these circumstances, in my view, the above comments of Foster J are apposite. I will return to them in due course.
CONCLUSIONS
Mr Rice, counsel for Mr Bartlett, has not provided any evidence to the Court as to what will be the actually costs of personally serving Mr Goodwin, Ms Shin and EchoNous with his client’s application in the United States or whether there are any particular difficulties implicit in such a process.
In addition, I have not been provided with any evidence regarding the application of any principle of United States law or of the states of Washington or Delaware, which may act as an impediment to the personal service of foreign process on a resident of the United States or of either of these two states.
Given the United States is an advanced country with a sophisticated legal system, with many similarities to the system for the administration of civil disputes prevailing in Australia, I do not think I am in a position to conclude that it would be impossible for Mr Bartlett to arrange, in some way, for the personal service of the relevant documents on the various respondents in the United States.
It seems improbable that it would be impossible for Mr Bartlett, through the offices of his solicitors, not to engage an agent to attend to this function on his behalf, given the obvious facility of communications between this country and the United States and the fact that any fees arising from such service can be easily transferred between any bank in Australia to one in the USA.
In addition, the actual physical whereabouts of each of the relevant respondents in the United States is readily apparent. As such, no evidence has been presented as to any particular issues, which may arise in respect of the act of physically providing Mr Goodwin and Ms Shin with the relevant application in the USA. It is not asserted that either Mr Goodwin or Ms Shin are actually evading personal service.
In his most recent affidavit, Mr Bartlett has deposed that research, undertaken by him, has indicated that there are likely to be substantial delays, relating to the COVID-19 pandemic in utilising the Hague Convention to serve the respondent’s that reside in the United States in Washington State.[12] In any event, it is the effect of his evidence that it must be the case that Mr Goodwin, Ms Shin and EchoNous are aware of the proceedings and have access to his application, as a consequence of the following matters:
·Mr Keogh is a director of EchoNous. He has been personally served in Australia. Ipso facto, EchoNous must be aware of the application, given Mr Keogh’s degree of control of the company;
·The applications have been sent by both overseas mail and email to Mr Goodwin and Ms Shin. There is no evidence that the modes of delivery resulted in a nugatory delivery;
·EchoNous’ Australian Counsel, as identified by Ms Shin, has been both personally and electronically served with documents in question.
[12] See Affidavit of the applicant filed 2 July 2021 at [7] – [10].
In these circumstances, it is submitted that Mr Goodwin and Ms Shin must each be fully aware of Mr Bartlett’s case. However by necessary implication, they are each, in effect, ignoring his application and this can only be for tactical purposes to delay the advance of his case against them. This, of itself, is sufficient to make an order for substituted service, if the Court is satisfied that each of the overseas respondents is aware of the relevant application, by the reason of the application of the alternative mechanisms for services, as delineated by Mr Bartlett and his solicitor.
Implicit in this assertion is the submission that this situation is sufficient to make the order for deemed service, which the applicant seeks, on the basis of an objective assessment of what is the overall practicality of the prevailing situation, namely an employment dispute between an employee and an employer, who have previously engaged with one another over international borders.
Underpinning this submission, and necessarily rectifying any lacuna relating to the absence of evidence relating to any mechanism for personal service in the United States is the further submission that it would be implausible for the Court to conclude, given the electronic correspondence with each of the United States respondents; the fact that Mr Keogh, a director of EchoNous has been personally served; and Ms Shin referral to the company’s Australian Counsel and the service on the relevant solicitors; that Mr Goodwin, Ms Shin and indeed EchoNous are anything other than aware of these proceedings but have elected not to engage with them.
In Electrolux Home Product Pty Ltd v Delap Impex Limited & Ors,[13]Katzmann J considered issues related to the assessment of circumstances in which documents cannot practicably be served. In Her Honour’s view, the parameters were not bound by sheer impossibility of achieving personal service but did not encompass a situation in which personal service was merely inconvenient.
[13] Electrolux Home Product Pty Ltd v Delap Impex Limited & Ors [2013] FCA 600 at [76] (Katzmann J).
Accordingly, the authorities are clear that in order to achieve an order for the dispensation of service, a party is not required to establish that it is impossible or futile to effect personal service but it simply being troublesome was not sufficient. However, an important gloss, in this regard, was that the Court is entitled to consider the extent of resources which would be needed to be allocated to the task of personal service. These need not be vast.
Clearly, it cannot be regarded as being impossible to achieve the personal service of the application in question on Mr Goodwin, Ms Shin and EchoNous. The question for the Court therefore is whether the circumstances prevailing in the matter are such that it become not practicable to require the applicant to require the mechanism of personal service to bring the proceedings to their attention. This must envisage more than it being inconvenient or troublesome to do so. Essentially, the ordinary rules of civil procedure should not be dispensed with merely on the basis of expediency.
In Sanum Investments Limited v ST Group Co., Ltd (No 2),[14] to which reference has already been made, Foster J said as follows:
[T]he meaning of impracticable…concerning service must be determined according to the circumstances of the particular proceedings, including the relief sought and the requirement that the litigation be progressed quickly and efficiently…the preponderance of authority is to the effect that r 10.24 of the FCR requires the applicant for orders to demonstrate that it is not sensible or realistic to effect personal service even though it may be possible or feasible to do so.[15]
[14] Sanum Investments Limited v ST Group Co., Ltd (No 2) [2019] FCA 1047.
[15] Ibid at [150] (Foster J).
Given my finding that the relevant process has come to the notice of each of the foreign respondents, I do not consider that it would be sensible to require an additional form of service by way of the documents in question being conveyed to the United States so that they can be physically provided to Mr Goodwin and Ms Shin. In my view, for the Court to require such service would, to adopt the word of Foster J, be unduly cumbersome.[16]
[16] See Sanum Investments Limited v ST Group Co., Ltd (No 2) [2019] FCA 1047.
The parties in the current proceedings have conducted business together, between the USA and Australia, in connection with the development of ‘a multi-function hand held medical device with capacity for auscultation, in other words, detecting sounds from various organs of the body to assist with medical diagnosis’.[17]Mr Bartlett has previously held conference calls with Mr Goodwin, whilst the former was in Australia and the latter was in the USA.
[17] See Bartlett v Signostics Ltd (in liq) [2019] FCCA 2989.
It seems to me to be implausible that Mr Goodwin and Ms Shin, as executives of a company which is engaged in such an enterprise would not regularly attend to their emails. It is in this context, the application for substituted service must be considered – namely international modern business. In this context, the words of Kirby J in Emanuele v Australian Securities Commission appear to me apposite,[18] namely:
Courts today are less patient with meritless technicalities. They recognise the inconvenience that can attend upon an overly strict requirement of conformity to procedural preconditions.
[18] Emanuele v Australian Securities Commission (1997) 188 CLR 114 at 152-3 (Kirby J), referring to Commissiner of Taxation v Zeitouni & Ors (2013) 138 ALD 294, 305 (Katzmann J).
In my view, in all the circumstances of the case, it would be stultifying of the fair and proper administration of justice if the case needs to await personal service on Mr Goodwin, Ms Shin and EchoNous before it can proceed further. I am fortified in this view given that Mr Keogh’s legal representative, who has some form of connection with the overseas defendants, was aware of the application and initially indicated that it was his view that Mr Bartlett’s application had no chance of success.
In these circumstances, on 23 April 2021, when the hearing of Mr Bartlett’s application was fixed, I noted that each party provide any relevant authorities and a case outline in respect of the issue 48 hours prior to the hearing. No submissions were received and Mr Keogh did not appear.
For these reasons, I propose to make the orders in respect of service sought by Mr Bartlett. The orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 12 August 2021
SCHEDULE OF PARTIES
ADG 371 of 2020 Respondents
Fourth Respondent:
ECHONOUS INC
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