Fair Work Ombudsman v United Chambers Pty Ltd
[2023] FedCFamC2G 26
Federal Circuit and Family Court of Australia
(DIVISION 2)
Fair Work Ombudsman v United Chambers Pty Ltd [2023] FedCFamC2G 26
File number(s): MLG 1912 of 2022 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 25 January 2023 Catchwords: INDUSTRIAL LAW - FAIR WORK – application for substituted service – whether there is an impediment to the making orders sought where second respondent is an undischarged bankrupt – consideration of whether orders for substituted service ought be made – finding that significant attempts have been made to personally serve the second respondent – orders made for substituted service. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 6.04, 6.14, 6.15 Cases cited: Fair Work Ombudsman v Benny 842 Pty Ltd [2022] FedCFamC2G 693 Division: Division 2 General Federal Law Number of paragraphs: 19 Date of last submission/s: 5 October 2022 Date of hearing: 5 October 2022 Place: Melbourne Solicitor for the Applicant: Mr B Adams of HWL Ebsworth Lawyers Solicitor for the First Respondent: No appearance by the First Respondent Solicitor for the Second Respondent: No appearance by the Second Respondent ORDERS
MLG 1912 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: UNITED CHAMBERS PTY LTD
First Respondent
ROONA NIDA
Second Respondent
order made by:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
25 January 2023
THE COURT ORDERS THAT:
1.Pursuant to rule 6.04(b) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), the Applicant’s Application and Statement of Claim, filed on 19 August 2022, are deemed to have been served on the Second Respondent on 27 September 2022 when they were emailed to [email protected].
2.Pursuant to rule 6.14 of the Rules, until further order or a Notice of Address for Service is filed and served by:
(a)the First Respondent, documents in this proceeding are deemed to have been served on the First Respondent on the next day after the documents are sent by email to [email protected];
(b)the Second Respondent, documents in this proceeding are deemed to have been served on the Second Respondent on the next day after documents are sent by email to [email protected] and by express post to 10A Girvan Circuit, Endeavour Hills, in the State of Victoria.
3.The first respondent file and serve a Notice of Address for Service by no later than 4:00pm on 15 February 2023.
4.The Second Respondent file and serve a Notice of Address for Service by no later than 4:00pm on 15 February 2023.
5.The First Respondent file and serve a response and any defence by no later than 4:00pm on 8 March 2023.
6.The Second Respondent file and serve a response and any defence by no later than 4:00pm on 8 March 2023.
7.The applicant file and serve a reply, if any, by no later than 22 March 2023.
8.The matter be listed for directions hearing on 9 May 2023 at 9:30am.
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) Rules 2021 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
Introduction
This is an interlocutory application seeking orders for substituted service on the respondents.
In support of the application, the applicant relies upon an affidavit of Mr Barney Spencer Adams affirmed on 4 October 2022 (‘Adams affidavit’).
A number of issues arise for determination in this proceeding, the primary issue being whether an order for deemed and/or substituted service in the terms sought ought to be made.
Second respondent as undischarged bankrupt
In determining this issue, a preliminary matter arose in circumstances where Mr Adams attests to the fact that the second respondent is an undischarged bankrupt. It was submitted for the applicant, and I agree, that this fact alone does not preclude the court making the orders sought in this application.
In the matter of Fair Work Ombudsman v Benny 842 Pty Ltd [2022] FedCFamC2G 693, his Honour Judge Blake considered whether proceedings similar to the substantive proceedings in this matter could be maintained against an undischarged bankrupt. His Honour at paragraphs [21] to [28] considered the relevant provisions in the Bankruptcy Act 1966 (Cth) and applicable authorities and concluded that there was no impediment in that legislation to the applications before him from being determined. I respectfully agree with and adopt his Honour’s reasons, and for similar reasons, the application presently before me is not rendered impermissible simply because the second respondent is an undischarged bankrupt.
Application for substituted service
I then turn to the question of whether, on the facts in this case, an order for substituted service ought be made. Rule 6.14 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (‘the Rules’) relevantly provides:
(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. Relevantly, it provides 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.
In the Adams Affidavit, Mr Adams sets out in some detail the attempts made to ascertain the second respondent’s address to enable personal service to be effected.[1]
[1] See Affidavit of Mr Barney Spencer Adams affirmed and filed on 4 October 2022 at paragraphs [4] to [7].
In summary, Mr Adams asserts on the basis of the inquiries made by him and his client, that:
(a)the second respondent’s son, Mr Hamad Fazal was the sole director, company secretary and shareholder of the first respondent;
(b)the registered office of the first respondent was 41 Walker Street, Dandenong;
(c)Mr Fazal’s residential address was 10A Girvan Circuit, Endeavour Hills (Girvan Circuit address’);
(d)the first respondent’s principal place of business was Suite 2, 147-151 Foster Street, Dandenong (‘business address’); and
(e)as at 29 April 2022, when a search was conducted by an employee of the applicant of the National Personal Insolvency Index, the second respondent’s address was the business address.
In addition, Mr Adams annexes to his affidavit various email communications between the applicant and the second respondent in relation to the applicant’s investigation into a complaint made against the respondents by Ms Kejsi Hoxha.[2] It is apparent from those email exchanges that the second respondent was communicating with the applicant using the email address ‘[email protected]’ (VicBar email address). In that email exchange the signature block contains the following information:
[2] Affidavit of Mr Barney Spencer Adams affirmed and filed on 4 October 2022 at Annexure BSA-3.
Roona Nida
Barrister, Victorian Bar
National Accreditted Mediator (sic)
United Chambers
2/147 Foster Street, Dandenong, VIC 3175
T: (03) 8900 6175 E: [email protected]
The Adams Affidavit further attests to information provided by the second respondent to Ms Hoxha in the course of the investigation process from the [email protected] email address (‘UC email address’) and the content of those emails suggests that it was being used by the second respondent.[3]
[3] Affidavit of Mr Barney Spencer Adams affirmed and filed on 4 October 2022 at paragraphs [11] to [12].
The Adams Affidavit gives further evidence about the numerous attempts made by the applicant to serve the Application and Statement of Claim (‘the Documents’) on the second named respondent by hand as required by the Rules.[4] As attested to in the Adams Affidavit, the applicant has engaged the services of a process server who has attempted on more than one occasion to serve the Documents on the second named respondent at the Foster Street business address in Dandenong.
[4] Affidavit of Mr Barney Spencer Adams affirmed and filed on 4 October 2022 at paragraph [14] and following.
The process server also attempted to send the Documents to the Second Respondent by express post.[5] At Annexure BSA-8 to the Adams affidavit is a progress report from the process server which details the steps taken as at 2 September 2022 to effect service on the second respondent, which included information that the Documents had been sent to the second respondent by post.
[5] Affidavit of Mr Barney Spencer Adams affirmed and filed on 4 October 2022 at paragraphs [17] to [19].
Mr Adams further states at paragraph [19] of his affidavit that he caused a search of the Australia Post website to be conducted in relation to the documents sent to each of the respondents by express post, which indicated that it had been delivered to the second respondent at the business address.
Further attempts were made on 9 September 2022 to personally serve the second respondent at the business address.[6] Mr Adams gives evidence about the further efforts he made to effect service on the second respondent including obtaining a skip trace report, which identified a connection between the second respondent and 10 Girvan Circuit, Endeavour Hills.[7] Thereafter, further attempts were made to personally serve the second respondent at the Girvan Circuit address.[8]
[6] Affidavit of Mr Barney Spencer Adams affirmed and filed on 4 October 2022 at paragraph [20].
[7] Affidavit of Mr Barney Spencer Adams affirmed and filed on 4 October 2022 at Annexure BSA-15.
[8] Affidavit of Mr Barney Spencer Adams affirmed and filed on 4 October 2022 at paragraphs [26] and [27].
A copy of the Documents and details of the upcoming court hearing were also emailed by Mr Adams to the second respondent at the UC email address. At the same time, Mr Adams also emailed the second respondent via her VicBar email address. He requested a delivery receipt and a read receipt when sending those emails. Although he did not receive a read receipt, he did receive a delivery receipt from the UC email address. In relation to the VicBar email address, Mr Adams received an automatically generated email response from that email address indicating that delivery to the VicBar email had failed.[9]
[9] Affidavit of Mr Barney Spencer Adams affirmed and filed on 4 October 2022 at paragraphs [28] to [31].
Mr Adams was further advised by the process server that a further attempt had been made to effect personal service on the second respondent at the Girvan Circuit address. The process server advised that there was no response at the property. Inquiries were made of a next door neighbour who was shown a photo of the second respondent. The neighbour confirmed that the second respondent did reside at the Girvan Circuit address and that she ordinarily would be working from home.[10]
[10] Affidavit of Mr Barney Spencer Adams affirmed and filed on 4 October 2022 at paragraph [32].
Having regard to this information, I am satisfied that significant attempts have been made to personally serve the second respondent. I am also satisfied that it is likely that the steps taken to date have brought the existence and nature of the documents to the attention of the second respondent. This is particularly so in circumstances where those documents were sent (and delivered) by express post to the second respondent both at her prior business address and at the Girvan Circuit address.
Conclusion
In each of those circumstances, I am satisfied that it is appropriate to make the orders sought by the applicant in this case and I so order.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Deputy Associate:
Dated: 25 January 2023
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