Fair Work Ombudsman v Monaco Willows Pty Ltd
[2024] FedCFamC2G 1218
•13 November 2024
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
Gouras v Voitin (No.2) [2023] FedCFamC2G 263
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 [email protected] 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 [email protected].
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 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law)
REASONS FOR JUDGMENT
INTRODUCTION
On 16 September 2024, the Fair Work Ombudsman (‘the applicant’) commenced proceedings against Monaco Willows Pty Ltd (‘the first respondent’) and Francis Placentino (‘the second respondent’).
In the statement of claim filed 16 September 2024, the applicant alleged the first respondent operated a café/bar in Windsor, Melbourne. The applicant alleged that following an investigation into complaints made by a former employee of the first respondent, it issued a compliance notice under s.716 of the FW Act to the first respondent.
As a result of non-compliance with that notice, the applicant alleged that the first respondent contravened various provisions of the Fair Work Act 2009 (Cth) (“the FW Act”) and that the second respondent (the sole director of the first respondent) was involved in those contraventions and given s.550 of the FW Act, accessorily liable as a result.
The proceedings were given today as the first Court date. There is evidence the first respondent has been served in accordance with Rule 6.08(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (‘the Rules’). However, by application in a proceeding filed 7 November 2024, the applicant now seeks for orders for substituted service on the second respondent. The issue that needs to be determined is whether an order for substituted service ought be made.
RELEVANT PROVISIONS AND PRINCIPLES
Rule 6.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (‘the Rules’) relevantly provides when service by hand is 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 another way
(c) a lawyer accepts service for a person other than a party
Rule 6.14 of the Rules sets out the specifics of 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 of the Rules goes on to set out the factors to which the court may have regard in determining whether to make an order dispensing with service or for substituted service. The Rules provide this as follows:
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.
How the Rules are applied when an application for substituted service is made has been considered in Gouras v Voitin (No.2) [2023] FedCFamC2G 263, where Judge Mansini said at [21] that:
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.
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.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Sullivan. Associate:
Dated: 13 November 2024
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