Bartlett v Goodwin

Case [2021] FCCA 1871

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 1047
Number 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…

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AGLC
Bartlett v Goodwin [2021] FCCA 1871
Case
[2021] FCCA 1871
Decision Date

CaseChat Overview and Summary

In *Bartlett v Goodwin*, heard by Brown J in the Supreme Court of New South Wales, the applicant, Mr Bartlett, sought to establish that the respondents, Mr Goodwin, Ms Shin, and EchoNous, had been properly served with court documents. The core of the dispute revolved around whether the methods of service employed by Mr Bartlett were sufficient to bring the proceedings to the attention of the respondents, particularly given that some respondents resided in the United States.

The primary legal issue before the Court was whether the service of the application on the respondents, including those residing in the United States, had been effective. This involved considering whether the respondents had actual knowledge of the proceedings and the application, even if formal personal service in the United States had not been achieved through conventional means such as the Hague Convention. The Court also had to assess the applicant's assertions regarding the difficulties and delays associated with serving foreign process, particularly in light of the COVID-19 pandemic.

Brown J reasoned that while formal personal service in the United States might present challenges, the evidence presented by Mr Bartlett indicated that the respondents were likely aware of the proceedings. The Court noted that Mr Keogh, a director of EchoNous, had been personally served in Australia, and it was reasonable to infer that EchoNous would therefore be aware of the application. Furthermore, the Court found that the dispatch of applications by overseas mail and email to Mr Goodwin and Ms Shin, coupled with the service of documents on EchoNous's Australian counsel, provided sufficient grounds to conclude that the respondents had been made aware of the proceedings. The Court was not satisfied that the applicant had demonstrated insurmountable difficulties in effecting personal service in the United States, nor had evidence been provided regarding any impediments under United States law.

Consequently, the Court concluded that the process in question had come to the attention of Mr Goodwin, Ms Shin, and EchoNous through the various conduits of service outlined. The Court found that the applicant had not provided sufficient evidence to demonstrate that it would be impossible to arrange for personal service in the United States, but ultimately found that the existing methods of service were sufficient to bring the proceedings to the respondents' attention.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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].

Ratio Decidendi

Legal Principle Established

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