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 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
JUDGE MANSINI
INTRODUCTION
The substantive matter before the Court is an application for the Applicant as creditor to have leave to commence proceedings in the Supreme Court of Victoria in respect of a provable debt after the First Respondent debtor became a bankrupt, pursuant to s.58(3) of the Bankruptcy Act 1996 (Cth) (Act).
This decision relates to an interlocutory application for substituted service on the First Respondent. For the reasons that follow, I have determined to dismiss the interlocutory application.
CONTEXT
These proceedings were initiated on 30 June 2022, by application (Form B2) and supporting affidavit of a Mr Sam Angelatos (solicitor, sworn 15 June 2022) filed on behalf of Mr Anthanasios Gouras. Essentially Mr Gouras seeks leave of the Court to commence proceedings in the common law division of the Supreme Court of Victoria as against Mr John Michael Voitin (one of three named defendants including Mr Voitin’s former legal practice, Stanton Grant Legal Pty Ltd). Those other proceedings have been initiated (No. S ECI 2021 0365) and for present purposes will be referred to as the Supreme Court proceedings.
The originating application in this proceeding named two respondents: Mr Voitin and his trustee in bankruptcy, a Mr Paul Anthony Allen of PKF Melbourne. The application provided an address for Mr Voitin but identified that Mr Gouras intended to serve the application on the trustee as Second Respondent.
On 13 September 2022, the matter was listed for an initial directions hearing to take place at 9.30am on 27 September 2022 with a reminder to attend to filing an affidavit of service 2 days prior.
On the morning of the initial directions hearing on 27 September 2022, the Court received:
(a)At 8.34am, a second affidavit of Mr Angelatos by which he deposed:
(i)To have made numerous attempts to serve the “CS” proceeding on the First Respondent without any success (understood to be a reference to the Supreme Court proceedings) and that Mr Gouras does not know the current whereabouts of Mr Voitin.
(ii)That Mr Voitin remained an undischarged bankrupt as at 26 September 2022 according to a National Personal Insolvency Index search which was annexed.
(iii)To have sent an email to the trustee on 26 September 2022 with notification of the directions hearing and also attaching a sealed copy of the application and supporting affidavit of 15 June 2022. A copy of that email (without attachments) was annexed.
(iv)To have had a telephone conversation with a director of the trustee’s firm (PKF Melbourne) on 26 June 2022 which confirmed the trustee does not have an address for Mr Voitin and is not aware of Mr Voitin’s whereabouts; Mr Voitin has not yet filed a statement of affairs; and the trustee’s last contact with Mr Voitin was about 2 months prior, in the Magistrates Court, where Mr Voitin had appeared in a criminal matter.
(v)To have had a telephone conversation on 26 August 2022 with the solicitor acting on behalf of the Legal Practitioners’ Liability Committee (LPLC) as the professional indemnity insurer of Mr Voitin’s former legal practice who confirmed that, if leave to proceed in the Supreme Court proceedings against Mr Voitin were granted by this Court, the LPLC would also appoint solicitors to act on his behalf in the Supreme Court proceeding. A copy of an email sent in the context of the Supreme Court proceedings and a proposal to reinstate the third defendant to those proceedings (not party to these proceedings) was annexed.
(b)At 9.22am, an email correspondence was sent to my chambers from a solicitor purporting to act on behalf of the trustee in which an adjournment was sought on the basis the trustee had not been formally served with the application and was not able to appear. By that email, it was noted that the trustee is likely to neither consent nor oppose the application for leave pursuant to s.58(3) of the Act but nonetheless sought an adjournment so that the trustee could consider his involvement in the matter and whether he should file a submitting notice.
At the initial directions hearing on 27 September 2022, appearance was entered by a legal representative for Mr Gouras and no other party. The threshold issue of service was discussed.
Subsequently, on 27 September 2022, procedural orders issued which required Mr Gouras to file evidence of service on both Mr Voitin and the trustee and that any application for substituted service on the trustee be made by 4.00pm on 4 October 2022. The Respondents were afforded liberty to apply to be heard in relation to the program or progression of the matter.
On 4 October 2022, an affidavit of service (sworn 4 October 2022) was filed by which Mr Angelatos again deposed to have sent an email of 26 September 2022 to the trustee which attached a sealed copy of the originating application and Mr Angelatos’s first affidavit sworn on 15 June 2022. Further, it was deposed that acknowledgement of receipt was provided by a solicitor of McPherson Kelley. A copy of that email (without attachments) and response was annexed.
Also on 4 October 2022, a further affidavit of Mr Angelatos was filed (also sworn 4 October 2022) which deposed to difficulties in serving Mr Voitin including that:
(a)Mr Gouras had no current mobile number or current email address for Mr Voitin.
(b)Mr Gouras is not aware of the whereabouts of Mr Voitin.
(c)Mr Angelatos had made attempts at locating Mr Voitin for the purpose of serving Mr Voitin with the writ in the Supreme Court proceedings however Mr Angelatos was not able to locate him. Annexed was an affidavit sworn by Mr Angelatos on 12 May 2022 for the purpose of the Supreme Court proceedings which included: email confirmation from Corrections Victoria that Mr Voitin was not in custody as of 25 November 2021; two affidavits of a process server sworn on 7 February 2022 which respectively deposed to unsuccessful attempts at service on Mr Voitin at “XXXX Balwyn Vic 3103” on 8 October 2021, and at “XXXX Kew Vic 3101” on 21 October 2021 (in each case, the process server being advised he did not reside at the address).
That further affidavit included the conclusion that, as Mr Voitin’s trustee in bankruptcy is also not aware of the current whereabouts of Mr Voitin and cannot communicate with him by telephone or email, Mr Gouras has exhausted all his avenues of locating Mr Voitin.
The further affidavit of 4 October 2022 also deposed to Mr Angelato’s knowledge that Mr Voitin “appears to have a LinkedIn profile”. A screenshot comprised of 2 pages was annexed.
On 25 October 2022, an application for substituted service was sent to the Court with the filing fee but was not accepted for filing on that date (Substituted Service Application). The Substituted Service Application referred to the further affidavit of 4 October 2022 in support. Not being satisfied that the interlocutory issue could be determined in chambers on the materials before the Court, the Substituted Service Application was listed for 31 October 2022.
Prior to the hearing, on 28 October 2022, a further affidavit of Mr Angelatos was filed (sworn that same day) by which he deposed:
(a)To have requested the process server (Ms Andrea Villot) to peruse her file and describe her efforts to obtain the location of Mr Voitin and undertake whatever further enquiries are required in order to obtain the current location of Mr Voitin. And that the process server confirmed she was not able to locate him. A copy of an email exchange between Mr Angelatos and Ms Villot dated 26 to 28 October 2022 was annexed. By that email exchange, Ms Villot concluded without further explanation that she suspected that Mr Voitin’s wife or ex-wife might be living in Heathcote Vic 3523 but had at that time been unable to confirm this.
(b)To have found an article dated 5 September 2019, by way of a google search, which referred to Mr Voitin being represented in Court by a defence lawyer “Martin Amad”. And to have had a telephone conversation on 27 October 2022 with Mr Martin Amad who confirmed by telephone that his office no longer acted for Mr Voitin; and then sent an email which confirmed this and identified the new lawyer acting for Mr Voitin as a Ms Tracey Rothwell of Rothwell Lawyers. A copy of an email exchange between Mr Angelatos and Mr Amad on 27 and 28 October 2022 was annexed.
(c)To have had a telephone conversation on 28 August 2022 with Ms Rothwell in which she: confirmed that she no longer acted for Mr Voitin in his criminal matters; that Mr Voitin is representing himself and she is acting on behalf of his wife; that to her knowledge Mr Voitin and his wife are still married and not separated; and she was unable to provide an address for Mr Voitin nor could she accept service on his behalf.
On 31 October 2022, the Substituted Service Application was heard by this Court as presently constituted. The Applicant was represented by counsel and no other party appeared.
SERVICE REQUIREMENTS
As distinct from other applications or “notices” under the bankruptcy legislation, there is no specific service requirement proscribed by the legislature for an application for leave of the Court made pursuant to s.58(3) of the Act. Similarly the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Bankrupcty Rules) do not specifically provide for service or substituted service of a s.58(3) application.
Accordingly, and pursuant to r.1.04(2) of the Bankruptcy Rules, the Federal Circuit and Family Court of Australia (Division 2) (General Federal law) Rules 2021 (FCFCOA Rules) Rules apply in relation to service and substituted service of the substantive application in this matter.
Rule 6.06 of the FCFCOA Rules requires service by hand for an application starting a proceeding. There are exceptions, relevantly where: there are current proceedings for which there is a notice of address for service for the person to be served; the Court directs that an application be served in another way; or a lawyer accepts service for a party and subsequently files a notice of address for service: r.6.06(2)(a) to (c).
Rule 6.11 provides for other methods of service at a person’s address for service in relation to documents not required to be served by hand.
Division 6.4 of the FCFCOA Rules contains the rules about substituted service and dispensing with service. Most relevant to the present case:
6.14 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.
6.15 Matters to be taken into account
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.
The object of service is to provide notice to a party of the proceedings (and, therefore, an opportunity to defend the proceedings) and it follows that the object of an order for substituted service is to bring to the knowledge of the relevant person the proceeding brought against them.
Whilst each case will turn on its own particular facts, the authorities have established guiding principles of relevant application here. Generally, the meaning of the term “impracticable to serve” will require an applicant to show that, as at the date on which the application for substituted service is made, the applicant, using reasonable effort, is unable to serve the respondent personally: Foxe v Brown (1984) 58 ALR 542.
The Applicant drew the Court’s attention to the authority in Ricegrowers Co-Operative Ltd v ABC Containerline NV [1996] FCA 1663; (1996) 138 ALR 480 at [482] where Tamberlin J held that the word “practicable” should be given a wide meaning and that the simple question was whether it was practicable to serve by one of the prescribed methods. The expression “not practicable” was, in his Honour’s view, essentially identical in meaning to the term impractical”. In this respect, evidence of unsuccessful attempts and evidence that service is “so obviously futile as not to warrant an attempt at service” are commonly brought before the Court in support.
Additionally, and although the current FCFCOA Rules do not strictly require it as a second limb, consideration may be given to whether the proposed method of service is likely to achieve the object of bringing the fact of the proceedings to the attention of the respondent. Specifically, the matter of 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 (among other matters that may be considered at r.6.15). In this respect, Counsel for Mr Gouras brought to the Court’s attention precedent wherein methods of substituted service have included service of a person closely connected with the Respondent such as their solicitor. Australian Competition and Consumer Commission v Facebook, Inc [2021] FCA 244 at [45].
And, in Royal Express Pty Ltd (Recs and Mgrs Apptd) (Admins Apptd) v Huang, Royal Express Pty Ltd (No 3) [2021] FCA 611 per O’Bryan J at [8]:
The authorities establish that it is not necessary for an applicant for an order for substituted service to prove that personal service was impossible or futile. Conversely, mere inconvenience in effecting personal service will not suffice. It is relevant, though, in assessing practicability, to take account of the urgency that attends the proceeding including where, as here, there is a risk of dissipation of property.
Departure from a requirement of actual notice is not unlimited and turns on the requirements of the relevant rules of the Court.
THE INTERLOCUTORY APPLICATION
As will be apparent from the context, the substantive application in this matter arises from the Applicant’s desire to commence proceedings in the Supreme Court as against Mr Voitin (as one of three defendants named therein), on a date that was after Mr Voitin became a bankrupt and in respect of what it seems to accept is a “provable debt”. The Applicant is also understood to accept that leave of this Court is required pursuant to s.58(3) of the Act and ultimately seeks such leave by way of the substantive proceedings.
Mr Voitin, the subject bankrupt and First Respondent, has not been served with the originating application and related materials as required by r.6.06 of the FCFCOA Rules (which apply pursuant to r.1.04 of the Bankruptcy Rules). The Applicant contended that it is unable to locate an address at which to serve Mr Voitin and has exhausted all other avenues to no success. On behalf of Mr Gouras, a Substituted Service Application was made on 25 October 2022 - direct to chambers and after the required time pursuant to the Court’s orders of 27 September 2022. As the matter proceeded at the interlocutory hearing on 31 October 2022, those strict matters of non-compliance may be taken to have been waived and the interlocutory application accepted for filing pursuant to rr.1.07 and 17.05 of the FCFCOA Rules.
The Court has received affidavit evidence that the trustee of Mr Voitin’s bankrupt estate as Second Respondent was emailed a copy of the originating application and supporting affidavit on 26 September 2022 and was also sent notice of hearings by email. As yet the trustee has declined to enter an appearance or participate in the proceedings. The Court has correspondence to indicate that the trustee may consider it has not yet been formally served and at present there is no evidence of service of the originating application by hand in accordance with r.6.06(1) or that any of the exceptions at r.6.06(2) apply. That is a matter which will, ultimately, need to be resolved but (whilst perhaps relevant to) is not strictly to be determined before the present interlocutory application for substituted service on Mr Voitin.
The Substituted Service Application sought an interim order pursuant to r.6.14 of the FCFCOA Rules that Mr Gouras may serve Mr Voitin by “posting” the relevant documents to Mr Voitin’s LinkedIn address. At the interlocutory hearing, counsel for Mr Gouras primarily sought an order allowing service on Mr Voitin by service on the solicitor for the person believed to be Mr Voitin’s current wife. It follows that the non-appearing Respondents were not on notice of the oral application to amend the orders sought. While it may be accepted that, by the very nature of the proceeding, Mr Voitin would not be on notice in any event, this does pose the question of whether such oral application ought be allowed.
Even if it were, on the evidence before the Court I am not presently satisfied that it is “impracticable” to serve Mr Voitin when regard is had to whether reasonable steps have been taken to serve on Mr Voitin. As will be apparent, the applicant has approached these proceedings by reference to attempts made in the Supreme Court proceedings. I accept those earlier attempts may be taken into account. However, there is no recent or reasonably proximate evidence of attempts to serve Mr Voitin at his last known residential address (being the residential address provided for Mr Voitin at the NPII search) or evidence of any such attempt at all since the process server’s unsuccessful attempts in October 2021 (now more than 12 months ago). Although it may be accepted that the process server was recently (on 26 October 2022) requested to peruse their file and undertake further enquiries necessary to obtain Mr Voitin’s current location, the response provided by the process server the following day on 27 October 2022) falls short of establishing that reasonable steps have been taken. For example, the process server did not say that they had recently refreshed searches by visiting the last known address(es) and did not say what if any steps were taken to search for mobile phone or email records of Mr Voitin, electoral, land title or other public records. There is no suggestion of advertising or why this would not likely achieve the objective of reaching Mr Voitin or is not an available method. Further, and without elaboration, the process server’s response concluded with their suspicion that Mr Voitin’s wife or ex-wife might be living in Heathcote Vic 3523. It would appear, therefore, that there remain reasonable steps to be taken to serve Mr Voitin. I accept that some attempt has been made and that it is unlikely that those steps taken would have brought these proceedings to the attention of Mr Voitin but, even on a broad view, am not presently satisfied that it is “impracticable” to serve Mr Voitin.
In my view, given the reasonable steps yet to be taken it is premature to conclude as to whether the proposed alternate methods of service are likely to bring the documents or the fact of these proceedings to the knowledge or attention of Mr Voitin.
In considering the matters that may be taken into account, I have had regard to the fact of the extant Supreme Court proceedings. The evidence before this Court included that the Supreme Court may be minded to stay or dismiss those proceedings as against Mr Voitin absent leave of this Court pursuant to s.58(3) of the Act. That is a matter properly to be taken into account, as is the cost to Mr Gouras. However, in the circumstances, these factors do not outweigh the principle or of themselves justify an order substituting personal service of the originating proceedings in this matter on Mr Voitin.
For the above reasons, the Substituted Service Application made on 25 October 2022 is dismissed. I will however invite further application, with further (consolidated) evidence of the relevant matters to which the Court may have regard.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 28 November 2022