FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Monaco Willows Pty Ltd [2024] FedCFamC2G 1218
File number(s): MLG 3155 of 2024 Judgment of: JUDGE O'SULLIVAN Date of judgment: 13 November 2024 Catchwords: PRACTICE AND PROCEDURE – application for substituted service – consideration of whether orders for substituted service ought be made– orders made for substituted service. Legislation: Fair Work Act 2009 (Cth) ss.550, 716
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 6.04, 6.06, 6.08, 6.14, 6.15
Cases cited: Briggs v Poulsen Family Co Pty Ltd [2023] FedCFamC2G 671
Fair Work Ombudsman v United Chambers Pty Ltd [2023] FedCFamC2G 26
Division: Division 2 General Federal Law Number of paragraphs: 14 Date of hearing: 13 November 2024 Place: Melbourne Solicitor for the Applicant Mr C Rawson Solicitor for the First Respondent No appearance by the First Respondent Solicitor for the Second Respondent No appearance by the Second Respondent ORDERS
MLG 3155 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: MONACO WILLOWS PTY LTD
First Respondent
FRANCIS PLACENTINO
Second Respondent
ORDER MADE BY:
JUDGE O'SULLIVAN
DATE OF ORDER:
13 NOVEMBER 2024
THE COURT ORDERS THAT:
1.Pursuant to Rule 6.06(2)(b) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (‘the Rules’), the requirement for personal service on Francis Placentino (‘the Second Respondent) pursuant to Rule 6.06(1) of the following documents be dispensed with:
(a)the Originating Application filed in this matter on 17 September 2024; and
(b)the Statement of Claim filed in this matter on 17 September 2024.
2.That service of the Court Documents is taken to have been effected on the Second Respondent pursuant to rule 6.14(3) of the Rules by way of the email to the Second Respondent at fplacentino@bigpond.com on 28 October 2024.
3.Until further order or such time that the Second Respondent identifies an address for service within an appropriate form filed with this Court, service of any documents may be effected on the Second Respondent pursuant to rule 6.14 of the Rules by emailing the documents to fplacentino@bigpond.com.
4.The Respondents file and serve a Notice of Address for Service by 22 November 2024.
5.The Respondents file and serve any Response and Defence by 13 December 2024.
6.The Applicant file and serve any Reply by 20 December 2024.
7.The proceeding be adjourned for directions in the Federal Circuit and Family Court of Australia at Melbourne on 14 February 2025 at 10.30 am.
8.The parties have liberty to apply
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
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- Case
- [2024] FedCFamC2G 1218
- Decision Date
CaseChat Overview and Summary
The Court considered the affidavits provided by the applicant, which detailed the unsuccessful attempts to serve the respondents personally. The second respondent had indicated in an email that the company had ceased trading and that he was on unemployment benefits, without significant assets. The Court had to assess if these circumstances justified substituted service. The Court referenced previous cases and noted that substituted service via email could be appropriate if personal service was impracticable and the respondent had been made aware of the proceedings.
The Court concluded that sufficient attempts had been made to serve the second respondent personally, and further attempts were impracticable. The Court was satisfied that the second respondent had been made aware of the proceedings through email correspondence. The Court also found that serving the respondent via email at the provided address was likely to ensure the respondent was informed of any orders made. Therefore, the Court granted the application for substituted service and scheduled the matter for further directions.
The Court ordered that the respondents be served via email at the address provided by the second respondent. The matter was to be programmed for further directions to allow the proceedings to continue effectively.
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
Ratio Decidendi
Legal Principle Established
There are also the decisions in Briggs v Poulsen Family Co Pty Ltd [2023] FedCFamC2G 671 and Fair Work Ombudsman v United Chambers Pty Ltd [2023] FedCFamC2G 26 where the relevant rules have been considered.CONSIDERATIONS The applicant relies on the two affidavits of Brent Speck filed on 7 November 2024 and also the affidavit of Joseph Okraglik filed on 11 November 2024 in support of the application in a proceeding. The affidavits detail the attempts made to serve both the first and second respondents. Mr Okraglik’s affidavit also annexes an ASIC extract that provides evidence that the first respondent is still registered and the second respondent is the sole director and secretary of the first respondent. The affidavit material evidences the applicant made contact with the second respondent on 28 October 2024 via his email address. The email attached the material filed by the applicant in these proceedings.[1] On that same day, the second respondent replied to Mr Okraglik as follows:Hi Joseph,For your information Monaco Willows Pty Ltd ceased trading In February 2024.I am on unemployment benefits and I do not own a house, shares or any other assets of value. In fact to continue trading I cashed in and used my superannuation which is now at zero.I have a personal guarantee to my landlord and a rental debt of over $100,000 which I do not have an ability to pay.I don’t know what you want to achieve with this application.[2][1] See annexure JO-15 of the Affidavit of Joseph Okraglik filed on 11 November 2024. [2] Ibid. Having regard to the affidavit material and the factors which the Court should consider, I am satisfied that sufficient attempts have been made to personally serve the second respondent and further attempts to do so are impracticable. I am also satisfied that it is likely the second respondent has been made aware of the existence and nature of the proceedings given the email correspondence from the second respondent on 28 October 2024. Finally, I am satisfied that service via email at the address used by the second respondent is likely to bring any orders made in these proceedings to his attention.CONCLUSION Given this, I am satisfied that it is appropriate to make the orders sought by the applicant and otherwise program the matter for further directions.