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
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 etagproman@hotmail.com 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 etagproman@hotmail.com.
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
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- AGLC
- Fair Work Ombudsman v Yesilbas [2024] FedCFamC2G 1212
- Case
- [2024] FedCFamC2G 1212
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the conditions were met to allow for substituted service. This required the court to determine if reasonable efforts to effect personal service had been made, whether further attempts were impracticable, and if the proposed method of substituted service (in this case, via email) was likely to bring the documents to the respondent's attention.
The court examined the affidavits provided by the applicant, which detailed multiple attempts to personally serve the respondent at his residential address and via telephone, as well as email correspondence. The court concluded that sufficient efforts had been made to serve the respondent personally and that further attempts were impracticable. Additionally, the court found that the steps taken had likely brought the respondent to the attention of the existence and nature of the documents filed in these proceedings. The court further determined that service via email at the address used by the respondent was likely to bring any order made in these proceedings to his attention. Given these findings, the court was satisfied that it was appropriate to make the orders sought by the applicant for substituted service and to program the matter for a further directions hearing.
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
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 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. 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. Ms Vassallo also deposes that on that same day, the respondent replied to the email from sophie.vassallo@fwo.gov.au as follows:Hi SophieI 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. 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. 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 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.