Gouras v Voitin - [2022] FedCFamC2G 992

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gouras v Voitin [2022] FedCFamC2G 992

File number(s): MLG 1487 of 2022

Judgment of: JUDGE MANSINI

Date of judgment: 28 November 2022

Catchwords: PRACTICE AND PROCEDURE – application for orders allowing substituted service on First Respondent – where Court cannot be satisfied that it is impracticable to serve the First Respondent – interlocutory application dismissed.

Legislation:
Bankruptcy Act 1966 (Cth) s.58(3).

Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 r.1.04(2).

Federal Circuit and Family Court of Australia (Division 2) (General Federal law) Rules 2021 rr.1.07, 6.06, 6.11, 6.14, 6.15, 17.05.

Cases cited:
Australian Competition and Consumer Commission v Facebook, Inc [2021] FCA 244

Foxe v Brown (1984) 58 ALR 542

Ricegrowers Co-Operative Ltd v ABC Containerline NV [1996] FCA 1663; (1996) 138 ALR 480

Royal Express Pty Ltd (Recs and Mgrs Apptd) (Admins Apptd) v Huang, Royal Express Pty Ltd (No 3) [2021] FCA 611

Division: Division 2 General Federal Law

Number of paragraphs: 34

Date of hearing: 31 October 2022

Place: Melbourne

Counsel for the Applicant: Mr J Levine

Solicitor for the Applicant: Maciel Pizzorno & Co Lawyers

Advocate for the First Respondent: No appearance

Advocate for the Second Respondent: No appearance

Table of Corrections

18 April 2023 At paragraph 10(c), the two addresses have been suppressed for publication.
ORDERS

MLG 1487 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
ATHANASIOS GOURAS

Applicant

AND:
JOHN MICHAEL VOITIN

First Respondent

PAUL ANTHONY ALLEN
Second Respondent

order made by:

JUDGE MANSINI

DATE OF ORDER:

28 November 2022

THE COURT ORDERS THAT:
1.The application for substituted service made on 25 October 2022 is dismissed.
2.By 4.00pm on 20 December 2022 the Applicant is to file, in accordance with the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules):
(a)an affidavit of service as to service of the originating application on the First Respondent and Second Respondent as required by r.6.06 of the Rules and service of all other Documents in these proceedings as required by r.6.11 of the Rules; and/or
(b)any further application for the Court to dispense with service or for substituted service of the originating application and Documents in accordance with r.6.14 of the Rules accompanied by a single, consolidated affidavit addressing the matters to be taken into account at r.6.15 of the Rules and an outline of submissions in support.

3.For this order, “originating application” means the application and supporting affidavit filed 30 June 2022 and “Documents” means the interlocutory application made on 25 October 2022, supporting affidavits of 27 September and 4 October 2022, written submission of 4 October 2022 and these interlocutory reasons and order of 28 November 2022.
4.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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FedCFamC2G 992
Decision Date

CaseChat Overview and Summary

In Gouras v Voitin, the Federal Circuit and Family Court of Australia (Division 2) was presented with an interlocutory application for substituted service on the First Respondent, Mr John Michael Voitin, who is a bankrupt. The Applicant, Mr Anthanasios Gouras, sought leave to commence proceedings in the Supreme Court of Victoria against Mr Voitin for a provable debt. The court was required to determine whether it was impracticable to serve Mr Voitin personally and if substituted service could be allowed. The court considered the evidence of unsuccessful attempts to locate Mr Voitin and whether reasonable steps had been taken to serve him. However, the court was not satisfied that it was impracticable to serve Mr Voitin as there were reasonable steps yet to be taken. Consequently, the interlocutory application for substituted service was dismissed, but the Applicant was invited to make a further application with consolidated evidence.

The court's reasoning was based on the guiding principles established in relevant authorities, which require an applicant to demonstrate that, using reasonable effort, they are unable to serve the respondent personally. The court noted that the Applicant had not taken recent or proximate steps to serve Mr Voitin at his last known residential address, and there was no evidence of any such attempts since the process server's unsuccessful attempts in October 2021. The court also considered the matters that may be taken into account, such as the extant Supreme Court proceedings, the cost to Mr Gouras, and the risk of dissipation of property. However, these factors did not outweigh the principle or justify an order substituting personal service of the originating proceedings in this matter on Mr Voitin.

Orders