FEDERAL COURT OF AUSTRALIA
Cuzzubbo v Solgold Plc [2024] FCA 594
File number: QUD 112 of 2023 Judgment of: RANGIAH J Date of judgment: 7 June 2024 Catchwords: PRACTICE AND PROCEDURE – interlocutory application – deemed service – substituted service – whether practicable for applicant to effect personal service in accordance with Hague Convention – whether documents brought to respondent’s attention – deemed service and substituted service allowed Legislation: Federal Court Rules 2011 (Cth) rr 1.31, 2.25, 8.05, 8.06, 10.24, 10.31, 10.45, 10.48, 10.49 and Div 10.4 Cases cited: Australian Information Commission v Facebook Inc (2020) 144 ACSR 88; [2020] FCA 531
Commissioner of Taxation v Caratti (No 2) [2018] FCA 1500
Commissioner of Taxation v Zeitouni (2013) 306 ALR 603; [2013] FCA 1011
Hamilton v Meta Platforms, Inc (Service out of Jurisdiction) [2022] FCA 681
Division: Fair Work Division Registry: Queensland National Practice Area: Employment and Industrial Relations Number of paragraphs: 36 Date of last submission: 7 March 2024 (Applicant) Date of interlocutory hearing: 8 February 2024 Counsel for the Applicant: Mr M Felman KC with Mr P Zielinski Solicitor for the Applicant: Minter Ellison Counsel for the First, Second, Third, Fourth and Sixth Respondents: Mr I Neil SC with Mr J McLean Solicitor for the First, Second, Third, Fourth and Sixth Respondents: Corrs Chambers Westgarth ORDERS
QUD 112 of 2023 BETWEEN: DARRYL CUZZUBBO
Applicant
AND: SOLGOLD PLC
First Respondent
LIAM TWIGGER
Second Respondent
SLOBODAN VUJCIC (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
RANGIAH J
DATE OF ORDER:
7 JUNE 2024
THE COURT ORDERS THAT:
1.The applicant’s Second Further Amended Statement of Claim filed on 22 February 2024 be taken to have been served upon the eighth respondent on 1 March 2024.
2.The applicant serve upon the eighth respondent:
(a)the Third Further Amended Originating Application; and
(b)these Orders;
by emailing them to “bsangha@maxitcapital.com”.
3.Upon the applicant, by his lawyers, filing an affidavit deposing that Order 2 has been complied with and that no automated message was received indicating that the email was not delivered, the Third Further Amended Originating Application be taken to have been served upon the eighth respondent on the day after the email is sent.
4.The applicant’s costs of his application for deemed or substituted service be reserved.
5.The matter be listed for a case management hearing on 4 July 2024 at 10.15 am in Brisbane.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
RANGIAH J:
The applicant seeks orders for deemed service of his Third Further Amended Originating Application and Second Further Amended Statement of Claim upon the eighth respondent, an individual who resides outside Australia. The applicant seeks, in the alternative, orders allowing substituted service of those documents upon the eighth respondent.
On 8 February 2024, the interlocutory application for deemed or substituted service was heard together with an application by four respondents to strike out parts of the applicant’s Further Amended Statement of Claim. After…
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- AGLC
- Cuzzubbo v Solgold Plc [2024] FCA 594
- Case
- [2024] FCA 594
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether it was practicable for the applicant to serve the eighth respondent in accordance with the Hague Convention, and if the documents had been brought to the respondent's attention. The court assessed the evidence provided by the applicant, which showed multiple unsuccessful attempts at personal service, including attempts via email, at the respondent's listed office address, and through a process server. The respondent had also failed to respond to communications and had terminated a call when informed that the caller represented the applicant. The court found that the criteria for deemed service under Rule 10.48 of the Rules were met, as it was not practicable to serve the eighth respondent in accordance with the Hague Convention and the documents had been brought to the respondent's attention.
Based on the evidence, the court concluded that it was not practicable to serve the eighth respondent in accordance with the Hague Convention due to the respondent's unresponsiveness and unavailability. The court allowed the application for deemed service and substituted service, ordering that the Second Further Amended Statement of Claim be taken to have been served on the eighth respondent on 1 March 2024. The applicant was directed to email the Third Further Amended Originating Application and the Orders to the eighth respondent, with service being deemed effective upon compliance with certain conditions. The applicant's costs of the application were reserved, and the matter was listed for a case management hearing.
Orders
Orders of the court
1. The applicant’s Second Further Amended Statement of Claim filed on 22 February 2024 be taken to have been served upon the eighth respondent on 1 March 2024.
2. The applicant serve upon the eighth respondent:
(a) the Third Further Amended Originating Application; and
(b) these Orders;
by emailing them to “bsangha@maxitcapital.com”.
3. Upon the applicant, by his lawyers, filing an affidavit deposing that Order 2 has been complied with and that no automated message was received indicating that the email was not delivered, the Third Further Amended Originating Application be taken to have been served upon the eighth respondent on the day after the email is sent.
4. The applicant’s costs of his application for deemed or substituted service be reserved.
5. The matter be listed for a case management hearing on 4 July 2024 at 10.15 am in Brisbane.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Rule 10.31 provides that a document that is not required to be served personally may be served, relevantly, at a party’s lawyer’s email address if the party is represented by a lawyer and the lawyer has filed a notice of address for service.Consideration The eighth respondent is the chief executive officer of Maxit Capital LP (Maxit Capital), a company based in Toronto, Canada. Service upon the eighth respondent of an originating process is covered by the Hague Convention. I will first consider the criteria of r 10.48 of the Rules, under which the applicant has sought an order that the Current Claim Documents be taken to have been served upon the eighth respondent. The first criterion is that it is not practicable to serve the documents in accordance with the Hague Convention. The second criterion is that the applicant provides evidence that the documents have been brought to the attention of the eighth respondent. The applicant’s evidence demonstrates that the applicant’s lawyers attempted service of the Earlier Claim Documents upon the eighth respondent in Canada in accordance with the Hague Convention. At the time of the hearing, around two months after the Earlier Claim Documents were received by the Canadian Central Authority, the applicant’s lawyers had not received any update regarding service of the documents. The applicant submits that, “continued attempts at service via the Hague Convention are unlikely to be successful and therefore would not have any utility”. The applicant submits that it is not practicable to serve the eighth respondent in accordance with the Hague Convention in circumstances where:(1)The eighth respondent has not responded to multiple attempts by the applicant’s lawyers to engage with him via the email address “bsangha@maxitcapital.com” (which he had previously and routinely used to correspond with the applicant), including a request to nominate a means by which personal service could be effected upon him.(2)A process server engaged by the applicant twice attempted service of the Earlier Claim Documents on the eighth respondent at the address listed on the Maxit Capital website (the only address associated with the eighth respondent ascertained by the applicant), and both attempts were unsuccessful.(3)During the second attempt to serve the eighth respondent at the Maxit Capital office, the process server was advised by an unidentified “rep” of Maxit Capital that the eighth respondent lives in Florida, that he only attends the office “once in a while”, and that his contact details were not known.(4)The process server again attempted to effect personal service of a draft Third Further Amended Originating Application and the Second Further Amended Statement of Claim upon the eighth respondent at the Maxit Capital office, but did not receive a response at the door, which was locked.(5)The eighth respondent has not responded to any voicemails left at a phone number listed on the Maxit Capital website, which has an automated voice response providing line options, including, “for Bob Sangha, press one”, which leads to a voice mail greeting, “identified by a man’s voice as belonging to ‘Bob Sangha’”. (6)The eighth respondent answered a call from one of the applicant’s lawyers on the line option, “for Bob Sangha”, at the phone number listed on the Maxit Capital website, but terminated the call after the lawyer stated that she represented the applicant. (7)The applicant’s lawyers have not been able to identify any other address for the eighth respondent via LinkedIn and Google searches.