Fair Work Ombudsman v DTF World Square Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v DTF World Square Pty Ltd [2020] FCA 1178

File number: NSD 669 of 2020
Judgment of: KATZMANN J
Date of judgment: 12 August 2020
Catchwords:

PRACTICE AND PROCEDURE — service of originating process — service outside Australia — whether leave should be granted to serve a respondent in Singapore pursuant to r 10.23 of Federal Court Rules 2011 (Cth) — whether respondent in or likely to be in Singapore — whether Court has jurisdiction — whether proceeding of a kind mentioned in r 10.42 — whether applicant has a prima facie case against respondent for any of relief claimed

PRACTICE AND PROCEDURE — deemed service — after multiple attempts had been made to personally serve two other respondents, whether personal service not practicable — whether applicant provided evidence that documents had been brought to their attention

Legislation:

Fair Work Act 2009 (Cth) ss 535(4), 562

Federal Court of Australia Act 1976 (Cth) s 37M(3)

Judiciary Act 1903 (Cth) s 39B(1A)(c)

Fair Work Regulations 2009 (Cth) reg 3.44(1)

Federal Court Rules 2011 (Cth) rr 10.42, 10.43(2)
Cases cited:

British American Tobacco Australasia Ltd  v Taleb (No 1) [2012] FCA 1065

BY Windown, Inc v Vautin (2016) 249 FCR 262

Commissioner of Taxation v Zeitouni [2013] FCA 1011; 306 ALR 603; 138 ALD 294; 97 ATR 619

Electrolux Home Products Pty Ltd v Delap Imprex Ltd [2013] FCA 600; 103 IPR 421

Ho v Akai Pty Ltd (in liq) (2006) 247 FCR 205

Titan Enterprises (Qld) Pty Ltd v Cross [2016] FCA 664

Watson v Kriticos (Joinder and Service Applications) [2020] FCA 1019
Division: Fair Work Division
Registry: New South Wales
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 31
Date of hearing: 12 August 2020
Counsel for the Applicant: Ms V Brigden
Solicitor for the Applicant: Office of the Fair Work Ombudsman
Counsel for the Respondents: The respondents did not appear

ORDERS

NSD 669 of 2020
BETWEEN:

FAIR WORK OMBUDSMAN

Applicant
AND:

DTF WORLD SQUARE PTY LTD (ABN 57 124 624)

First Respondent

SELDEN FARLANE LACHLAN INVESTMENTS PTY LTD (ABN 82 164 883 809)

Second Respondent

DENDY HARJANTO  (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

KATZMANN J

DATE OF ORDER:

12 AUGUST 2020

THE COURT ORDERS THAT:

1.Pursuant to r 10.43(2) of the Federal Court Rules 2011 (Cth), leave be granted to the applicant to serve the originating application and the statement of claim filed in these proceedings on 17 June 2020 on the third respondent in Singapore in accordance with the law of Singapore.

2.Pursuant to r 10.23 of the Federal Court Rules 2011 (Cth), the originating application and statement of claim filed by the applicant on 17 June 2020 are taken to have been served:

(a)on the fourth respondent on 17 July 2020 by express post to her last known residential address at 705/8 Brodie Sparks Dr Wolli Creek NSW; and

(b)on the fifth respondent on 7 July 2020 by email to…

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Details
Case
[2020] FCA 1178
Decision Date

CaseChat Overview and Summary

In the case of Fair Work Ombudsman v DTF World Square Pty Ltd, the Fair Work Ombudsman sought orders for service of originating process outside Australia and for deemed service under the Federal Court Rules 2011 (Cth). The central dispute involved the service of legal documents on respondents located in Singapore and Australia, where personal service had proved unsuccessful. The court was tasked with determining whether the conditions for service outside Australia and deemed service were satisfied. Specifically, the court had to decide whether the respondents were in or likely to be in Singapore, whether the court had jurisdiction, and whether the proceeding was of a kind mentioned in the rules. Additionally, the court needed to assess whether the applicant had a prima facie case for some of the relief claimed.

The court examined the evidence provided by the Fair Work Ombudsman, which included multiple attempts to serve the respondents personally and through alternative means. The Ombudsman provided text messages and email communications as evidence that the documents had been brought to the respondents' attention. The court found that personal service was not practicable due to the respondents' unavailability and the inability to ascertain their locations despite numerous attempts. The court concluded that the Ombudsman had provided sufficient evidence to deem the documents served on the respondents under the Federal Court Rules. The court further determined that the conditions for deemed service were met, as the documents had been effectively brought to the respondents' attention.

In light of the evidence and the legal framework, the court granted the Ombudsman's application for leave to serve the documents on the respondents in Singapore and ordered that the originating application and statement of claim be deemed served on the Australian respondents. The court extended the time for service and required the respondents to file notices of address for service and defences to the statement of claim by a specified date.

The final orders included granting leave for service on the Singaporean respondent, deeming service on the Australian respondents, extending the time for service, and requiring the filing of notices of address and defences.

Orders

Orders of the court

1. Pursuant to r 10.43(2) of the Federal Court Rules 2011 (Cth), leave be granted to the applicant to serve the originating application and the statement of claim filed in these proceedings on 17 June 2020 on the third respondent in Singapore in accordance with the law of Singapore.

2. Pursuant to r 10.23 of the Federal Court Rules 2011 (Cth), the originating application and statement of claim filed by the applicant on 17 June 2020 are taken to have been served:

(a) on the fourth respondent on 17 July 2020 by express post to her last known residential address at 705/8 Brodie Sparks Dr Wolli Creek NSW; and

(b) on the fifth respondent on 7 July 2020 by email to the address sin.parmenas@gmail.com.

3. Pursuant to r 1.39 of the Federal Court Rules 2011 (Cth), the time for service of the originating application and statement of claim on the fourth and fifth respondents be extended to 17 July 2020.

4. By 9 September 2020, the fourth and fifth respondents file and serve notices of address for service and defences to the statement of claim.

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

In all the circumstances and having regard to all the evidence, I am satisfied that personal service is not practicable.The Ombudsman has provided evidence that the documents have been brought to the attention of the respondents I am also satisfied that the originating documents have been brought to the attention of both Ms Handoko and Ms Parmenas. On 23 July 2020 Ms Toner sent text messages to mobile telephone numbers which she had previously used to communicate with them, providing Dropbox links to the originating documents. On 13 July 2020 copies of the documents were mailed to Ms Handoko’s home address by express post. The documents were successfully delivered at 1.58pm on 15 July 2020 and were not returned to sender. On 13 July 2020 the originating documents were also sent by express post to Ms Parmenas’ last known residential address. The documents were successfully delivered to that address at 3pm on 15 July 2020. In the Ombudsman’s original interlocutory application she sought an order that the originating documents be deemed to have been served on 17 July 2020. The basis for the proposed order was that r 10.32 relevantly provides that a document that is served on a person by pre-paid post addressed to the person at the person’s proper address is taken to be served on the person on the fourth business day after the document was sent. On 3 August 2020, Ms Toner received the express post envelope addressed to Ms Parmenas containing the originating documents, marked “Return to Sender”. As the Ombudsman submitted, while at first blush this suggests that Ms Parmenas no longer lives at that address, that notation is far from conclusive. As I mentioned earlier, the evidence shows that Ms Parmenas owns the property to which the documents were sent or is an owner of the property to which the documents were sent. The sticker apparently applied by Australia Post indicates that the reason why the documents were served is unknown. There is no indication that the addressee had left the address or refused to accept the package. Besides, as the Ombudsman pointed out in her written submissions, the Court need not be satisfied that Ms Parmenas acknowledged receipt of the originating documents, given attention to them, let alone read or understood them: British American Tobacco Australasia Limited v Taleb (No 1) [2012] FCA 1065 at [46] (Dodds‑Streeton J). For more abundant caution, however, by an amended interlocutory application the Ombudsman sought an alternative order that they were brought to the attention of Ms Parmenas by an email Ms Toner sent to her personal email address on 7 July 2020. That is the email address recorded by Ms Parmenas on her incoming passenger card when she returned to Australia after a holiday in New Zealand on 3 January 2020. In the email Ms Toner informed Ms Parmenas that on the previous day she had tried to email her at her Din Tai Fung email address without success. She went on to advise that, further to her 29 June 2020 email, in which she had notified Ms Parmenas that the Ombudsman had commenced proceedings against her, she was attaching to the email the originating application and the statement of claim which the Ombudsman had filed in the proceedings.

Decision

Reasons for decision

I am satisfied, based on the evidence in Ms Toner’s second and third affidavits to which I was taken at the hearing and which is summarised in the Ombudsman’s written submissions, that there is a prima facie case for at least some of the relief claimed in the proceeding.Conclusion For all these reasons, I am persuaded that the order the Ombudsman seeks should be made. While the Court has a discretion to refuse to do so, there is no apparent reason why it should be exercised in this case.The application for deemed service Without notice, a party may apply to the Court for, and the Court may make, 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 a document on the person in a way required by the Rules; and(b)the party provides evidence that the document has been brought to the attention of the person to be served.See rr 10.23; 1.41.Personal service is not practicable In Electrolux Home Products Pty Ltd v Delap Imprex Ltd [2013] FCA 600; 103 IPR 421 at [72]–[81] I discussed the meaning of “not practicable” in the context of r 10.24, which deals with substituted service where a similar condition is imposed, and adopt what I said there. In summary, while mere inconvenience is not enough, “not practicable” does not mean not possible or futile. It is sufficient that personal service cannot be effected using the available means or after a number of unsuccessful attempts. What is not practicable will vary according to the circumstances of the case. Consequently, where there is no realistic way of discovering the location of the respondent, personal service has been considered not practicable: Commissioner of Taxation v Zeitouni[2013] FCA 1011; 306 ALR 603; 138 ALD 294; 97 ATR 619 (Katzmann J); Titan Enterprises (Qld) Pty Ltd v Cross [2016] FCA 664 (Edelman J). The need for speed and efficiency may render personal service impracticable, such as where the claim in question is for urgent interlocutory relief: see generally Zeitouni at [62]–[86]. Furthermore, s 37M(3) of the Federal Court of Australia Act 1976 (Cth) requires the Court to exercise its power in the way that best promotes the overarching purpose of the civil practice and procedure provisions, which is to facilitate the just resolution of disputes according to law and as quickly, inexpensively, and efficiently as possible. It follows that considerations of efficiency and cost, as well as the speedy resolution of proceedings, will influence the determination of what is “not practicable”. More than six weeks have lapsed since the proceedings were instituted. The evidence establishes that, notwithstanding numerous attempts by numerous process servers on numerous occasions, personal service of the originating documents on Ms Handoko and Ms Parmenas has not been successful. On 1 and 2 July 2020 and on 14 and 15 July 2020 attempts were made to serve them at the registered office of DTF where they were known to have worked. Five attempts were made last month to serve Ms Handoko at the Chatswood Din Tai Fung Restaurant where she was understood to work at times. On 13, 14 and 15 July 2020 attempts were made to serve Ms Handoko at the address, which on 9 December 2019 she had indicated in an incoming passenger card was her residential address in Australia and which as recently as 6 March 2020 was listed in ASIC records as her home address.

Ratio Decidendi

Legal Principle Established

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