Briggs v Poulsen Family Co Pty Ltd
[2023] FedCFamC2G 671
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Briggs v Poulsen Family Co Pty Ltd [2023] FedCFamC2G 671
File number(s): SYG 827 of 2023 Judgment of: JUDGE LAING Date of judgment: 24 July 2023 Catchwords: PRACTICE AND PROCEDURE – application for substituted service in respect of the second respondent – where the second respondent appears to be aware of and to have engaged representation in relation to the proceedings but “require[s] personal service” – obligations under s 191 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – orders for substituted service made Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 6.04, 6.14(3)
Cases cited: DHI22 v Qatar Airways Group QCSC [2023] FCA 616
Ford, in the matter of Careers Australia Group Ltd (in liq) v Mansfield [2022] FCA 173
Gouras v Voitin (No 2) [2023] FedCFamC2G 263
Division: Division 2 General Federal Law Number of paragraphs: 20 Date of hearing: 24 July 2023 Place: Sydney Solicitor for the Applicant: Mr J Reines Appearing for the Respondents: No appearance ORDERS
SYG 827 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KATHLEEN BRIGGS
Applicant
AND: POULSEN FAMILY CO PTY LTD ATF POULSEN FAMILY TRUST ACN 132 217 764 & ABN 98 525 323 913
First Respondent
JOHN POULSEN
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
24 JULY 2023
THE COURT ORDERS THAT:
1.The name of the second respondent be amended to “Mr John Poulsen”, dispensing with the need for filing any further document in this regard.
2.Pursuant to rules 6.04 and 6.14(3) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the requirement of service by hand upon the second respondent under rule 6.06 is dispensed with in respect of the following documents, which are taken to have been served upon the second respondent by email on 21 June 2023:
(a)Application – Fair Work Division (filed with Form 2) filed on 15 May 2023;
(b)Application – Dismissal from employment in contravention of a general protection: form 2 filed on 15 May 2023; and
(c)Statement of Claim filed on 15 May 2023.
3.The applicant serve a copy of these orders upon the respondents by 31 July 2023. Service by email to the address [email protected] will be deemed sufficient service in respect of the second respondent.
4.The respondents file and serve Notice(s) of Address for Service by 4 August 2023.
5.The matter be listed for directions at 9.30am on 7 August 2023.
6.The parties have liberty to apply on 3 days’ notice.
THE COURT NOTES THAT: any party wishing to appear by telephone or AVL link on the next occasion should request to do so by email to [email protected] at least one clear day before the listing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)
JUDGE LAING:
By an Originating Application, Form 2 and Statement of Claim filed on 15 May 2023 the applicant seeks relief in relation to claimed contraventions of s 351 of the Fair Work Act 2009 (Cth) by the respondents.
By an Application in a Proceeding filed on 17 July 2023, the applicant seeks orders for substituted service in relation to the second respondent.
RELEVANT PROVISIONS AND PRINCIPLES
Rule 6.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) provides:
When is service by hand required
(1)Service by hand is required for an application starting a proceeding or a subpoena requiring attendance of a person.
(2) However, service by hand is not required if:
(a)there are current proceedings for which there is a notice of address for service for the person to be served; or
(b) the Court directs that an application may be served in another way; or
(c)a lawyer accepts service for a party and subsequently files an address of service; or
(d) a lawyer accepts service for a person other than a party.
Rule 6.14 of the Rules states:
Substituted service
(1)If, for any reason, it is impracticable to serve a document in a way required under this Part, the Court may make an order dispensing with service or substituting another way of serving the document.
(2)The Court may specify the steps to be taken for bringing the document to the attention of the person to be served.
(3)The Court may specify that the document is to be taken to have been served on the happening of a specified event or at the end of a specified time.
Rule 6.15 states:
Matters to be taken into account
In making an order for dispensing with service or for substituted service, the Court may have regard to:
(a)whether reasonable steps have been taken to attempt to serve the document; and
(b)whether it is likely that the steps that have been taken have brought the existence and nature of the document to the attention of the person to be served; and
(c)whether the person to be served could become aware of the existence and nature of the document by means of advertising or another means of communication that is reasonably available; and
(d)the likely cost to the party serving the document, the means of that party and the nature of the proceedings; and
(e) any other relevant matter.
The object of service is to provide notice to other parties of the proceedings (and therefore an opportunity to defend them). The object of substituted service is therefore to bring to other parties’ knowledge the proceedings brought against them: Gouras v Voitin (No. 2) [2023] FedCFamC2G 263 at [21] per Judge Mansini.
The Court is more likely to make an order for substituted service if it can be reasonably satisfied that the method of substituted service will bring, or will have brought, the documents to the attention of the party to be served: DHI22 v Qatar Airways Group Q.C.S.C [2023] FCA 616 at [23] per Halley J.
Whilst inconvenience is insufficient to justify an order for substituted service, it is not necessary for an applicant to prove that it is impossible or futile to effect personal service before an order for substituted service can be made. Substituted service may be justified where an applicant is unable to serve a respondent by hand “using reasonable effort”. Factors such as the desirability of litigation progressing quickly and efficiently may also be relevant: see Ford, in the matter of Careers Australia Group Ltd (in liq) v Mansfield [2022] FCA 173 at [14]-[16] per O'Bryan J and the cases referred to therein.
APPLICATION
The applicant relies upon an affidavit sworn by Joel Reines on 14 July 2023. This evidences that on 16 June 2023, the applicant attempted service by email to Jonathan Smith Lawyers of the Application, Form 2 and Statement of Claim that were filed by the applicant commencing these proceedings. The email requested confirmation of receipt and acceptance of service on behalf of the respondents.
On 21 June 2023, no reply having been received, the applicant requested by email confirmation of whether Jonathan Smith Lawyers acted for the second respondent. The email noted that if such confirmation were not provided, then it would be assumed that the second respondent was self-represented and all future correspondence would be addressed to him. The email attached a further copy of the Application, Form 2 and Statement of Claim.
On 23 June 2023, Jonathan Smith of Jonathan Smith Lawyers replied through a letter attached to an email, stating:
I act for Mr and Mrs Poulsen.
It is my client’s position that they require personal service on them in accordance with the rules.
No further explanation was provided. The correspondence did not suggest, for example, that the second respondent was not in possession of the Application and supporting documents nor that he was unable to obtain possession of the documents other than by personal service. The second respondent is clearly aware of the proceedings, having provided instructions to Mr Smith in relation to them. An available inference is therefore that the second respondent is in possession of the documents and has engaged representation in relation to the proceedings, but is nonetheless insisting upon personal service. This is in circumstances where the result is potentially increased costs on the part of the applicant as well as delay of the proceedings before the Court.
An informal application for substituted service on the respondents was made at the first return date of this matter on 4 July 2023. Mr Smith’s letter dated 23 June 2023 was relied upon. I would have been minded to have granted the application on that occasion, except for the fact that there was no evidence, at that stage, of the context of Mr Smith’s letter, nor of why it was contended that it was impracticable to serve the first respondent (a corporation). I was informed that the second respondent was a director of the first respondent. However no evidence of this, at that stage, was provided. In the circumstances, I adjourned the matter to allow further evidence to be filed in support of the substituted service application. For the benefit of the respondents, I also drew attention in a notation to s 191 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). Sections 190 and 191 are as follows:
190 Overarching purpose of civil practice and procedure provisions
(1)The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
Note 1: See also paragraphs 5(a) and (b).
Note 2: The Federal Circuit and Family Court of Australia (Division 2) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.
(2)Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court's overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3)The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4)The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b)any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).
191 Parties to act consistently with the overarching purpose
(1)The parties to a civil proceeding before the Federal Circuit and Family Court of Australia (Division 2) must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.
(2)A party's lawyer must, in the conduct of such a proceeding before the Federal Circuit and Family Court of Australia (Division 2) (including negotiations for settlement) on the party's behalf:
(a) take account of the duty imposed on the party by subsection (1); and
(b) assist the party to comply with the duty.
(3)The Federal Circuit and Family Court of Australia (Division 2) or a Judge may, for the purpose of enabling a party to comply with the duty imposed by subsection (1), require the party's lawyer to give the party an estimate of:
(a) the likely duration of the proceeding or part of the proceeding; and
(b)the likely amount of costs that the party will have to pay in connection with the proceeding or part of the proceeding, including:
(i) the costs that the lawyer will charge to the party; and
(ii)any other costs that the party will have to pay in the event that the party is unsuccessful in the proceeding or part of the proceeding.
Note: Paragraph (b)--in relation to a family law or child support proceeding, the Federal Circuit and Family Court of Australia (Division 2) may make an order as to costs under section 149 of the Family Law Act 1975 if the Court is of the opinion that there are circumstances that justify it in doing so.
(4)In exercising the discretion to award costs in a civil proceeding, the Federal Circuit and Family Court of Australia (Division 2) or a Judge must take account of any failure to comply with the duty imposed by subsection (1) or (2).
(5)Without limiting the exercise of that discretion, the Federal Circuit and Family Court of Australia (Division 2) or a Judge may order a party's lawyer to bear costs personally.
(6)If the Federal Circuit and Family Court of Australia (Division 2) or a Judge orders a lawyer to bear costs personally because of a failure to comply with the duty imposed by subsection (2), the lawyer must not recover the costs from the lawyer's client.
It is my intention to discuss these provisions with the second respondent, potentially through his representatives, at some point in the future.
Mr Reines’ affidavit indicates that subsequent to the first listing date, the first respondent was served with the Originating Application, Form 2 and Statement of Claim by Registered Post. At the listing, Mr Reines confirmed under oath that these documents were sent to the second respondent’s Registered Office. Service by hand therefore appears to have been effected upon the first respondent pursuant to rule 6.08 of the Rules and s 109X of the Corporations Act 2001 (Cth).
Having regard to these matters, I accept that reasonable efforts have been taken in attempting to effect service upon the second respondent. Those efforts have brought the existence and nature of the documents to the second respondent’s attention. I do not see how the second respondent’s insistence that the documents be served by hand achieves anything other than increasing costs and delay in these proceedings.
In terms of costs, Mr Reines’ affidavit annexes an email quotation in the amount of $3,029.20 for attendance by a process server at the location contemplated for service by hand. The email indicates that the location is on an island and that attendance would require travel by small planes of limited availability, as well as the funding of accommodation and car hire. The email does not clearly state what options would be available, nor their costs, if the attendance did not achieve service by hand on the first occasion.
A further issue that was discussed today concerns the spelling of the second respondent’s name. It seems clear enough, from Mr Reines’ affidavit and the spelling of the first respondent, that the second respondent’s name contains a typographical error. This was confirmed by Mr Reines at the listing today. The spelling of the second’s respondent’s surname should be “Poulsen” rather than “Poulson”. This will need to be corrected. However, it is apparent from Mr Smith’s correspondence that this typographical error has not affected the second respondent’s awareness of and ability to provide instructions in relation to these proceedings.
CONCLUSION
In the foregoing circumstances, I am satisfied that it is appropriate to make orders dispensing with the requirement that further steps be taken to serve the Originating Application, Form 2 or Statement of Claim upon the second respondent in these proceedings. An order will also be made correcting the typographical error in the second respondent’s name and providing for the timetabling of this matter.
For these reasons, the orders at the forefront of these Reasons for Judgement have been made.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Laing. Associate:
Dated: 24 July 2023
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