Fair Work Ombudsman v Yesilbas

[2024] FedCFamC2G 1212

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Fair Work Ombudsman v Yesilbas [2024] FedCFamC2G 1212  

File number(s):

MLG 3290 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) s.716

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 6.04, 6.06 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:

16

Date of hearing:

13 November 2024

Place:

Melbourne

Solicitor for the Applicant:

Ms S Vassallo

Solicitor for the Respondent:

No appearance by the Respondent

ORDERS

MLG 3290 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

IN THE MATTER OF FAIR WORK OMBUDSMAN

BETWEEN:

FAIR WORK OMBUDSMAN

Applicant

AND:

TAMER YESILBAS

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 pursuant to Rule 6.06(1) on the Respondent of the following documents be dispensed with:

(a)the Application filed in this proceeding on 30 September 2024; and

(b)the Statement of Claim filed in this proceeding on 30 September 2024.

2.Service of the Application and Statement of Claim both filed on 30 September 2024 is taken to have been effected on the Respondent pursuant to rule 6.14(3) of the Rules by way of the email sent to the Respondent at [email protected] on 2 October 2024.

3.Until further order or until the Respondent gives an address for service, service of any further documents filed in this proceeding is to be effected on the Respondent pursuant to rule 6.14(2) of the Rules by emailing the documents to [email protected].

4.The Respondent file and serve a Notice of Address for Service by 22 November 2024.

5.The Respondent 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: This copy of the Court’s Reasons for judgment may be subject to review 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

INTRODUCTION

1. On 30 September 2024, the Fair Work Ombudsman (‘the applicant’) commenced proceedings against Tamer Yesilbas (‘the respondent’). The applicant alleged that the respondent had contravened various provisions of the Fair Work Act 2009 (Cth) (“the FW Act”).

2. The respondent was a sole trader who operated a bar, trading as “The Dock Lounge” in Docklands, Melbourne, Victoria. The applicant alleges inter alia that following an investigation into a complaint made concerning a former employee, it issued a compliance notice to the respondent pursuant to s.716 of the FW Act and the respondent failed to comply with that notice.

3. The proceedings were given today as the first Court date. In advance of the first Court date, the applicant has filed an application in a proceeding on 7 November 2024 accompanied by 2 affidavits.

4. The applicant now seeks orders for substituted service on the respondent. The issue that needs to be determined is whether an order for substituted service ought to be made. 

   RELEVANT PROVISIONS AND PRINCIPLES

5. 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

6. 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.

7. 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 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.

8. 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.

9. 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.

10. In Briggs v Poulsen Family Co Ltd [2023] FedCFamC2G 671 it was said:

    7.The Court is more likely to make an order for substituted service if it can be reasonably satisfied that the method of substituted service will bring, or will have brought, the documents to the attention of the party to be served: DHI22 v Qatar Airways Group Q.C.S.C [2023] FCA 616 at [23] per Halley J.

    8.Whilst inconvenience is insufficient to justify an order for substituted service, it is not necessary for an applicant to prove that it is impossible or futile to effect personal service before an order for substituted service can be made. Substituted service may be justified where an applicant is unable to serve a respondent by hand “using reasonable effort”. Factors such as the desirability of litigation progressing quickly and efficiently may also be relevant: see Ford, in the matter of Careers Australia Group Ltd (in liq) v Mansfield[2022] FCA 173 at [14]- [16] per O'Bryan J and the cases referred to therein.

    CONSIDERATIONS

11. The applicant relies upon two affidavits in support of the application in a proceeding filed 7 November 2024 for orders for substituted service. In an affidavit of Cheryl Claney filed on 7 November 2024, she deposes to multiple attempts at service on the respondent at his residential address. She also deposes to attempts to contact the respondent by telephone.

12. In the second affidavit filed on 7 November 2024, Sophie Vassallo deposes inter alia that on 2 October 2024, she had both telephone contact and email correspondence with the respondent. Ms Vassallo deposes that in email correspondence the applicant sent to the respondent attached were a letter of service, the application, and the statement of claim that had been filed with the Court on 30 September 2024.

13. Ms Vassallo also deposes that on that same day, the respondent replied to the email from [email protected] as follows:

    Hi Sophie
    I have paid $2000 into Vanessa’s account. Please find attached copy of the receipt.
    I will make the rest of the payment within the next few weeks.

14. Having regard to affidavit material of the applicant, I am satisfied that sufficient attempts have been made to personally serve the respondent and further attempts to do so are impracticable. I am also satisfied that it is likely that the steps taken to date have brought the existence and nature of the documents filed in these proceedings to the attention of the respondent.

15. Finally, I am satisfied that service via email at the address used by the respondent is likely to bring any order made in these proceedings to his attention.

    CONCLUSION

16. In the circumstances, I am satisfied that it is appropriate to make the orders sought by the applicant in relation to substituted service and otherwise program the matter for a further directions hearing.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Sullivan.

Associate:

Dated:       13 November 2024