Gordon v Greenup and; Gordon v Marsden
[2011] FMCA 270
•8 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GORDON v GREENUP and GORDON v MARSDEN & ANOR | [2011] FMCA 270 |
| HUMAN RIGHTS – Alleged sexual discrimination and sexual harassment on mine site. |
| PRACTICE AND PROCEDURE – Substituted service of application. |
| Federal Magistrates Act 1999 (Cth), s.3 Federal Magistrates Court Rules 2001 (Cth), rr.1.03, 6.14, 6.15 |
| Applicant: | KYLIE GORDON |
| Respondent: | WARREN ALLAN GREENUP |
| File Number: | PEG 43 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 8 April 2011 |
| Date of Last Submission: | 8 April 2011 |
| Delivered at: | Perth |
| Delivered on: | 8 April 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms K Walawski |
| Solicitors for the Applicant: | Sparke Helmore Lawyers |
| For the Respondent: | No appearance |
| Applicant: | KYLIE GORDON |
| First Respondent: | DREW MARSDEN |
| Second Respondent: | NORTHROCK PTY LTD |
| File Number: | PEG 45 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 8 April 2011 |
| Date of Last Submission: | 8 April 2011 |
| Delivered at: | Perth |
| Delivered on: | 8 April 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms K Walawski |
| Solicitors for the Applicant: | Sparke Helmore Lawyers |
| For the First Respondent: | No appearance |
| Counsel for the Second Respondent: | Mr E Scarff |
| Solicitors for the Second Respondent: | Clement & Co. |
ORDERS
PEG 43 of 2011
Substituted service be permitted on the Respondent, Warren Allan Greenup, pursuant to rule 6.14(1) of the Federal Magistrates Court Rules 2001 (Cth).
That the Applicant be granted leave to serve the Respondent with the application PEG43/2011 filed on 23 February 2011 in this Honourable Court by:
(a)posting the application and a copy of this Order for substituted service by registered post to the registered office of WAG Earthmoving Pty Ltd (ACN 120 331 035) at 195 Mandurah Terrace, Mandurah WA 6210;
(b)sending a text message to, and leaving a voice message with, the mobile number 0439 242 336 notifying the Respondent that:
(i)he has now been served pursuant to an Order for substituted service given by this Honourable Court on the relevant date;
(ii)the application has been sent to the above address;
(iii)the Respondent has 14 days to file a response; and
(iv)alternatively, the Respondent can obtain the Applicant’s application and Order for substituted service from the reception of Sparke Helmore Lawyers, Level 10 Panoramic House, 553 Hay Street, Perth, 6000 in the state of Western Australia.
(c)emailing a scanned PDF copy of:
(i)the application; and
(ii)this Order for substituted service,
to the Respondent at the following email address: [email protected].
The matter be adjourned to 9.30am on Monday 9 May 2011 for a further directions hearing.
PEG 45 of 2011
Substituted service be permitted on the First Respondent, Drew Marsden, pursuant to rule 6.14(1) of the Federal Magistrates Court Rules 2001 (Cth).
That the Applicant be granted leave to serve the First Respondent with the application PEG45/2011 filed on 23 February 2011 in this Honourable Court by:
(a)posting the application and a copy of this Order for substituted service by registered post to the registered office of Northrock Pty Ltd at 283 Rokeby Road, Subiaco WA 6008;
(b)posting the application and a copy of this Order for substituted service by registered post to the principal place of business of Northrock Pty Ltd at Lot 2507 Fisher Way, Karratha WA 6714;
(c)sending a text message to and leaving a voice message with the mobile number 0408 006 698 notifying the First Respondent that:
(i)the First Respondent has now been served pursuant to an Order for substituted service given by this Honourable Court on the relevant date;
(ii)the application has been sent to the above addresses;
(iii)the First Respondent has 14 days to file a response; and
(iv)alternatively, the First Respondent can obtain the Applicant’s application and Order for substituted service from the reception of Sparke Helmore Lawyers, Level 10 Panoramic House, 553 Hay Street, Perth, 6000 in the state of Western Australia.
emailing a scanned PDF copy of:
(i)the application; and
(ii)this Order for substituted service,
to the following email address: [email protected].
The matter be adjourned to 9.30am on Monday 9 May 2011 for a further directions hearing.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 43 of 2011
| KYLIE GORDON |
Applicant
And
| WARREN ALLAN GREENUP |
Respondent
PEG 45 of 2011
| KYLIE GORDON |
Applicant
And
| DREW MARSDEN |
First Respondent
| NORTHROCK PTY LTD |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore reasons – edited from transcript)
The Court has before it three matters this morning but only two of those matters relate to an application in a case which has been made by the applicant in each of those matters which are Gordon v Greenup, PEG 43 of 2011 and Gordon v Marsden & Anor, PEG 45 of 2011. In each of those two matters the substantive application alleges unlawful acts of sex discrimination and sexual harassment at the Sino Iron project at Cape Preston near Karratha. In each of those two matters there is an application in a case for substituted service.
Rules 6.14 and 6.15 of the Federal Magistrates Court Rules 2001 (Cth)[1] provide as follows:
Rule 6.14
(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.
[1] “FMC Rules”.
Rule 6.15
When 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
(aa) 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
(b) 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
(c) the likely cost to the party serving the document, the means of that party and the nature of the proceedings; and
(d) any other relevant matter.
In the Greenup matter, PEG 43 of 2011, there is an affidavit before the Court from Ms Walawski which indicates as follows:
a)that process servers were engaged by the applicant’s solicitors and they endeavoured to serve the respondent, Mr Greenup, personally at an address in Karratha, that address having been obtained from documents provided by Mr Greenup to the applicant in other proceedings;
b)that attempt to serve was unsuccessful;
c)as a result of inquiries by the process servers, there were then unsuccessful attempts to serve on a number of occasions, it would appear at least three, on another address in Karratha which the respondent, Mr Greenup, was said to have moved to;
d)the process servers were then provided with further instructions from the applicant’s solicitors to endeavour to serve at an address in Kalamunda. It is not immediately apparent why that address was chosen but there is evidence that when service was attempted the process server was advised that Mr Greenup used to live at the Kalamunda property but had not been seen for six weeks and had left no forwarding address;
e)again, on the basis of further instructions from the applicant’s solicitors, an address in Forrestfield was nominated as a possible address and the process servers attended that address without success in contacting Mr Greenup as it appeared that he did not reside at that property;
f)the process servers were also given a mobile telephone number and an email address for Mr Greenup, and the mobile telephone number given to them enabled them to contact Mr Greenup and arrange a time for personal service; and
g)the respondent, Mr Greenup, did not attend at the nominated time and place and the process servers have been unable to make any further contact with Mr Greenup.
The applicant seeks to serve Mr Greenup by way of substituted service by registered post at the registered office of WAG Earthmoving Pty Ltd,[2] who are the respondents in related proceedings numbered PEG 44 of 2011, on the basis that Mr Greenup is a director of WAG Earthmoving and that service has previously been effected on WAG Earthmoving in PEG 44 of 2011.
[2] “WAG Earthmoving”.
Having regard to the terms of r.6.15 of the FMC Rules:
a)the Court is satisfied that there have been reasonable steps taken to attempt service on Mr Greenup in Karratha and Kalamunda. The Forrestfield address, it would appear, was not an address at which service could have been effected as it does not appear on the evidence that Mr Greenup ever resided there. Further, that reasonable steps have been taken because personal contact has been made with Mr Greenup by the applicant’s process server and indeed, an arrangement was made to meet and serve personally Mr Greenup, which arrangement was avoided by him, and that those reasonable steps have been in train for a period of over a month;
b)it is apparent that the nature and existence of the application has been brought to Mr Greenup’s attention by reason of the contact that has been made with him by the applicant’s process server and the Court also notes that not dissimilar papers by way of an application would have come to his attention in his capacity as a director of WAG Earthmoving in matter PEG 44 of 2011;
c)the means of service, that is:
i)registered post at the registered office of WAG Earthmoving, of which Mr Greenup is a director; and
ii)notification by SMS and voice message to the mobile phone number on which Mr Greenup was contacted by the process server,
is, in the Court’s view, likely to bring to Mr Greenup’s attention the application and these proceedings. The Court adds that it will also require that service be effected on Mr Greenup at the email address set out in the affidavit as being one for Mr Greenup, namely, [email protected];
d)the cost, which is a factor which the Court has to have regard to, of service by way of registered post, SMS and voice message, and email is not such as to be inconvenient to the applicant, who is an individual who has alleged the harassment and discrimination, and will certainly be cheaper and quicker than continued attempts at personal service; and
e)in terms of any other relevant matter, it is evident from Mr Greenup’s failure to attend the arranged meeting with the process server that there has been an avoidance of service.
The Court also considers it to be relevant that s.3 of the Federal Magistrates Act 1999 (Cth), and r.1.03 of the FMC Rules provide that this Court ought to act informally in a streamlined way and avoid undue delay, expense and technicality. Those are relevant factors to consider in an application for substituted service.
In the circumstances, there will be in the Gordon v Greenup matter, PEG 43 of 2011, orders as asked with the following amendments:
a)in proposed order 2(a) the insertion of the words “and a copy of this Order for substituted service,” after the word “application”; and
b)the addition of an order 2(c) in the following terms: by emailing a scanned PDF copy of the:
i)application; and
ii)this Order for substituted service,
to the respondent at the following email address: [email protected].
In relation to the Gordon v Marsden matter, which is PEG 45 of 2011, there is again an affidavit before the Court from Ms Walawski in relation to that matter. That affidavit indicates that:
a)there was attempted service on Mr Marsden at an address in Beechboro, that address being one which had been provided or obtained by the applicant from the proof of evidence provided by Mr Marsden to the Australian Human Rights Commission in relation to, it would appear, the complaint which has given rise to this application;
b)process servers were engaged to serve the application at a Beechboro address and no less than four attempts were made to serve at that address, all of which were unsuccessful;
c)there were then instructions given for the process server to attempt to contact Mr Marsden’s employer, Northrock Pty Ltd,[3] in an attempt to obtain his current residential address or whereabouts. In relation to that, it would appear that process servers spoke to someone at Northrock who agreed, as the employer of Mr Marsden, to pass a message on to Mr Marsden;
d)the applicant’s solicitors were also provided with further instructions in relation to mobile telephone numbers for Mr Marsden and also an email address, [email protected], as a means of possible contact with Mr Marsden, those mobile telephone numbers and the email address being obtained directly from the applicant; and
e)it would appear that the process servers were able to speak to Mr Marsden on one of the mobile telephone numbers provided, but that he was evasive and refused to commit to a time or location in order for personal service of the application to be effected and subsequently, the applicant’s process servers have not been able to contact Mr Marsden at all.
[3] “Northrock”.
The applicant therefore seeks orders for substituted service of the application on Mr Marsden by way of:
a)registered post to the registered office of Northrock; and
b)registered post to the principal place of business of Northrock,
on the basis that the process servers’ inquiries have confirmed that:
a)Mr Marsden is an employee of Northrock;
b)Mr Marsden is working, fly in/fly out, somewhere out of Nullagine, but makes contact with Northrock and returns to their base in Karratha; and
c)service has been effected on Northrock as a joint respondent in the application. Indeed, Mr Scarff appeared for Northrock today before being excused from further attendance.
Having regard to the terms of r.6.15 of the FMC Rules:
a)the Court is satisfied that reasonable steps have been taken:
i)by way of the attempted service at the Beechboro address; and
ii)by the process servers having spoken to Mr Marsden on the mobile phone,
to attempt to bring the application to Mr Marsden’s notice and to serve the document on him;
b)the Court considers that it is likely that the steps that have been taken have brought the existence and nature of the application to Mr Marsden’s attention;
c)the Court considers that the means of service proposed, with the addition of email service of the application and any order for substituted service to Mr Marsden’s email address of [email protected], will be sufficient to bring the proceedings to Mr Marsden’s attention;
d)the cost is not such as to inconvenience the applicant and is cheaper than personal service, particularly in circumstances where it appears that Mr Marsden spends some time away as a fly in/fly out worker, working out of Nullagine and in circumstances where it is apparent that he is not prepared to facilitate attempts to have service personally effected on him;
e)the Court notes that it is relevant that Mr Marsden has not facilitated service and, in the words of Ms Walawski’s affidavit, appears to have “evaded” attempts to make arrangements for him to be served; and
f)the Court notes again that under s.3 of the FM Act and r.1.03 of the FMC Rules that it is required to act informally in a streamlined manner and to avoid undue delay, expense and technicality.
Therefore, there will be orders as asked in the Marsden matter with the following amendments.
a)in order 2(a) by including the words “and a copy of this Order for substituted service,” after the word “application.”
b)by deleting the words “Locked bag 1, Muchea, WA, 6501” and inserting the words “283 Rokeby Road, Subiaco, WA” and the appropriate postcode for Subiaco, in order 2(a);
c)in order 2(b) inserting the words “and a copy of this Order for substituted service” after the word “application” in the manner previously indicated; and
d)by inserting order 2(d) as follows:
by emailing a scanned PDF copy of:
i)the application; and
ii)this Order for substituted service,
to the following email address: [email protected].
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate:
Date: 21 April 2011
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