British American Tobacco Australasia Limited v Taleb (No 1)

In the case of British American Tobacco Australasia Limited v Taleb (No 1), the applicant sought orders for deemed and substituted service of its originating application and statement of claim. The applicant, British American Tobacco Australasia Limited, alleged that the respondents had infringed its WINFIELD trade marks by selling goods bearing these marks without authority. The primary issue before the court was whether the applicant had satisfied the requirements of Federal Court Rules 10.23 and 10.24 to permit deemed and substituted service of the originating application and statement of claim.

The court considered whether the applicant had provided direct evidence that the documents had been brought to the attention of the respondents, as required by rule 10.23(b). The applicant presented affidavits and evidence showing attempts to personally serve the respondents, which were unsuccessful. The court found that the evidence met the requirements of the rule, as the documents were left at the respondents' addresses with persons over the age of 16, who were instructed to bring them to the respondents' attention. The court also concluded that it was not practicable to personally serve the respondents, satisfying the requirements of rule 10.24.

The court granted the applicant's orders for deemed and substituted service of the originating application and statement of claim on both respondents. Service of further documents could be effected by leaving them with a person over the age of 16 at the respondents' addresses or sending them by registered post. Costs were reserved.

This decision highlights the importance of satisfying the specific requirements for deemed and substituted service under the Federal Court Rules and the court's willingness to grant such orders when the applicant provides sufficient evidence of their attempts to effect personal service and the impracticality of doing so.