Gouras v Voitin (No. 2)
[2023] FedCFamC2G 263
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gouras v Voitin (No. 2) [2023] FedCFamC2G 263
File number(s): MLG 1487 of 2022 Judgment of: JUDGE MANSINI Date of judgment: 6 April 2023 Catchwords: PRACTICE AND PROCEDURE – second application for orders allowing substituted service on First Respondent – interlocutory application allowed. Legislation: Bankruptcy Act 1966 (Cth) s.58(3).
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 rr.6.14, 6.15.
Cases cited: Australian Competition and Consumer Commission v Facebook, Inc [2021] FCA 244
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: 24 Date of last submission/s: 17 March 2023 Date of hearing: On the papers in chambers Place: Melbourne
Table of Corrections 18 April 2023 At order 2, the address and the email address have been suppressed for publication. 18 April 2023 At paragraph 12(c), the address has been suppressed for publication. 18 April 2023 At paragraph 13, the number 12(b) was replaced with the number 12(e). 18 April 2023 At paragraph 15, the address has been suppressed for publication. 18 April 2023 At paragraph 23, the address has been suppressed for publication. ORDERS
MLG 1487 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ATHANASIOS GOURAS
ApplicantAND: JOHN MICHAEL VOITIN
First RespondentAND: PAUL ANTHONY ALLEN
Second Respondent
order made by:
JUDGE MANSINI
DATE OF ORDER:
6 April 2023
THE COURT ORDERS THAT:
1.Pursuant to r.6.14 of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth), personal service on the First Respondent of the ‘Application: Federal Circuit and Family Court (Division 2) (Bankruptcy) Rules 2021 form B2’ filed on 15 June 2022 (Application) be dispensed with.
2.The Application together with “the Documents” as defined herein, be served on the First Respondent as follows:
(a)by express post, addressed: Attention Mr Voitin, XXXX, Deepdene Victoria 3103:
(i)a covering letter;
(ii)a sealed copy of this order;
(iii)a sealed copy of the Application;
(iv)the Court’s orders made on 27 September 2022;
(v)the Court’s reasons and orders made on 31 October 2022;
(vi)a copy of the affidavit affirmed on 15 June 2022 by Mr Athanasios Gouras;
(vii)a copy of the affidavit affirmed on 27 September 2022 by Mr Sam Angelatos;
(viii)a copy of the affidavit affirmed on 4 October 2022 by Mr Sam Angelatos;
(ix)a copy of the affidavit affirmed on 28 October 2022 by Mr Sam Angelatos;
(x)a copy of the affidavit affirmed on 17 March 2023 by Mr Sam Angelatos;
(xi)a copy of the affidavit affirmed on 28 February 2023 by Mr Basilios Meletsis; and
(xii)the Court’s reasons and orders made on 6 April 2023,
(collectively, the Documents).
(b)by placing the Documents in an envelope marked for the attention of Mr Voitin and leaving the envelope in a prominent or conspicuous location at the premises at XXXX, Deepdene Victoria 3103;
(c)by placing the Documents in an envelope marked for the attention of Ms Tracy Rothwell of Rothwell Lawyers and handing the envelope to a person apparently over the age of 16 years apparently working at Rothwell Lawyers at 401 Docklands Drive, Docklands Victoria 3008 or, in the event that no such person is in attendance, by placing the envelope in the letter box at this address; and
(d)by sending an email to Rothwell Lawyers at [email protected] with the subject line ‘EMAIL BY COURT ORDER – Service of Application’, attaching the Documents in PDF, which reads as follows:
EMAIL BY COURT ORDER – ATTENTION MS TRACY ROTHWELL
Bankruptcy case MLG1487/2022 has been filed against John Michael Voitin. The proceeding is listed for directions before her Honour Judge Mansini of the Federal Circuit and Family Court of Australia at 9:15 am on 1 May 2023 at 305 William Street, Melbourne. The Court documents are attached to this email. The Court may be contacted on 1300 720 980, or by email to [email protected].
3.Service of the Application be deemed to be effected on 14 April 2023 upon condition that the events referred to in paragraph 2 occur by 14 April 2023.
4.The costs of this application be reserved.
5.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, the interlocutory application ought be allowed.
CONTEXT
The originating application in this proceeding, filed 15 June 2022, 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 and identified that Mr Gouras intended to serve the application on the trustee as Second Respondent.
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 and orders were made requiring any application for substituted service to be made by 4.00pm on 4 October 2022.
On 4 October 2022, the solicitor for Mr Gouras filed an affidavit in which he applied for substituted service (First Substituted Service Application).
On 28 November 2022, I delivered and published my Reasons for Judgment on the First Substituted Service Application (Earlier Reasons). The application was dismissed and orders were made requiring the Applicant to file, by 4.00pm on 20 December 2022:
(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.
Nothing was filed by 4.00pm on 20 December 2022 as ordered.
On 16 January 2023, my chambers wrote to the Applicant’s solicitor noting that the Applicant had not filed any materials or otherwise notified chambers in compliance with the orders of 28 November 2022. No response was received and subsequently, the matter was listed for hearing on 31 January 2023 to address the non-compliance.
On 31 January 2023, the matter proceeded to a directions hearing on the question of compliance with the Court’s orders of 28 November 2022. The Applicant was represented by Counsel and there was no appearance by the First Respondent who had not been served and there was no appearance by or on behalf of the Second Respondent.
Also on 31 January 2023, the Applicant filed an affidavit of Mr Angelatos (sworn on 30 January 2023). Mr Angelatos deposed to having instructed a process server, Ms Andrea Villot, on 30 November 2022 and that Ms Villot had been unable to complete her investigations due to contracting COVID-19 in early December 2022. Mr Angelatos also deposed to having contacted the Applicant and that he was instructed by the Applicant that a process server had been employed to locate the First Respondent for the purposes of the Supreme Court proceedings, and that the process server had been unable to locate the First Respondent.
Orders were made extending the time of compliance with the orders of 28 November 2022 to 4.00pm on 28 February 2023.
On 28 February 2023, the Applicant filed an interlocutory application for substituted service (Second Application for Substituted Service) and an affidavit of process server, Mr Basilios Meletsis (Process Server) sworn on that same date by which he deposed to have:
(a)Attended the premises at XXXX, Kew on 26 January 2023, an address which the process server linked to the First Respondent because the media had reported (in 2020) that the First Respondent was shot in the driveway at that address. There was no answer at the door, however the process server heard noises from within the house and waited outside the premises for approximately 3 hours. No one came out of the house in that period. Those premises were attended again on 27 January, 2 February, 4 February and 8 February 2023 to no avail.
(b)Attended the premises at XXXX, Deepdene on 30 January 2023 being the First Respondent’s known home address. The affidavit of search dated 17 March 2023 disclosed this address on the record as Mr Voitin’s only known address. The Process Server spoke to a blonde woman who became nervous and informed him that no one by the First Respondent’s name lived at the premises and requested he leave. The Process Server formed the opinion that the woman may have known the First Respondent and be hiding his whereabouts. Those premises were attended again on 31 January, 6 February, 12 February and 15 February 2023 to no avail.
(c)Attended the café at XXXX, Deepdene that the First Respondent’s wife, Ms Voitin, used to own. The Process Server asked a worker if Claire Voitin was at the premises and was advised that she was no longer there as the business had been purchased from her approximately 3 years ago. The Process Server also asked if the First Respondent had been frequenting the café and was told that the First Respondent had attended the café in the past and that a number of people had come to the café looking for the First Respondent.
(d)Made inquiries with a number of (unspecified) people who advised the Process Server that the First Respondent is likely hiding from numerous people and likely staying somewhere in Heathcote in Victoria where he and his wife are believed to be living on a farm. The Process Server was unable to obtain an address.
(e)Searched the Electronic Filing Appearance System (EFAS) of the Magistrates’ Court of Victoria on 28 February 2023. The Process Server found that the First Respondent had 2 cases pending at the Melbourne Magistrates’ Court on 26 April 2023 and 22 May 2023. The EFAS records confirmed that Tracy Rothwell of Rothwell Lawyers Pty Ltd is on the record as the representative of the person named in those proceedings being the same person named as First Respondent to these proceedings.
In relation to this evidence summarised at 12(e), it is relevant to note that in the affidavit of Mr Angelatos sworn 28 August 2022 (prepared for the purposes of the First Application for Substituted Service, relied on again here) he deposed to have had a telephone conversation with Ms Rothwell on 28 August 2022 in which she had confirmed that she no longer acted for Mr Voitin in his criminal matters and she was not able to provide an address for service on him or accept service on his behalf.
On 15 March 2023, my chambers followed up regarding the non-compliance in that an outline of submissions had not been filed.
On 17 March 2023, the Applicant filed an outline of written submissions and an affidavit of search sworn by Mr Angelatos on that same date. The affidavit of search deposed that the Applicant’s solicitor had conducted up to date electoral roll searches, an ASIC personal names search, Infotrack search and a NPII search. The only address that had been disclosed from the searches was XXXX, Deepdene. The Applicant did not file a single, consolidated affidavit or submissions and instead sought to additionally rely on the materials filed in support of the First Application for Substituted Service.
There being no request to the contrary, this Second Application for Substituted Service was considered on the papers in chambers.
SERVICE REQUIREMENTS
The statutory context and applicable principles are outlined in the Earlier Reasons and equally applicable here:
16As 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.
17Accordingly, 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.
18Rule 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).
19Rule 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.
20Division 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.
21The 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.
22Whilst 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.
23The 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.
24Additionally, 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].
25And, 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.
26Departure from a requirement of actual notice is not unlimited and turns on the requirements of the relevant rules of the Court.
CONSIDERATION
On the totality of the evidence, the Court can now be and is satisfied of the following.
As at the date the Second Substituted Service Application was made (28 February 2023), it was impractical or not practical to serve the First Respondent.
The address at Deepdene is the last known home or residential address of the First Respondent and there is a reasonable likelihood service there may bring these proceedings to the attention of the First Respondent.
The information provided by Ms Rothwell of Rothwell Lawyers in August 2022 is not current. There is, at least now, a real prospect if not a certainty that Ms Rothwell of Rothwell Lawyers is able to alert the First Respondent to the existence of these proceedings given she appears on the record as his representative in other, ongoing court proceedings.
For completeness, although it is not now pressed in the Second Substituted Service Application, I remain unpersuaded that the LinkedIn profile belongs to the First Respondent or is an appropriate method of substituted service on him.
For the above reasons, it is appropriate to order that personal service be dispensed with and service be effected by placing in a conspicuous or prominent location at and posting by express post to the address at XXXX, Deepdene Victoria, and by personal delivery and email to Ms Rothwell at Rothwell Lawyers.
I order accordingly. The matter will be listed for programming of the substantive application to take place after the date for compliance with those orders.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 6 April 2023
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