Haire v WorkCo Australia Pty Ltd - [2024] FCA 668

FEDERAL COURT OF AUSTRALIA
Haire v WorkCo Australia Pty Ltd [2024] FCA 668

File number(s): VID 1048 of 2023

Judgment of: HORAN J

Date of judgment: 14 June 2024

Date of publication of reasons: 21 June 2024

Catchwords: PRACTICE AND PROCEDURE – service on persons in a foreign country – application for deemed service of documents outside Australia under r 10.48 of the Federal Court of Australia Rules 2011 (Cth) – application for substituted service under r 10.24 – whether practicable to serve documents on person outside Australia in accordance with Hague Convention – whether evidence that documents brought to the attention of the person – application granted

Legislation: Federal Court Rules 2011 (Cth) rr 10.24, 10.42, 10.44, 10.46, 10.43B, 10.48, 10.49

Cases cited:
Australian Securities and Investments Commission v China Environment Group Ltd [2013] FCA 286

bCode Pty Ltd (in liq) v Holford [2018] FCA 798

British American Tobacco Australasia Limited v Taleb (No 1) [2012] FCA 1065

Commissioner of Taxation v Caratti (No 2) [2018] FCA 1500

Cuzzubbo v Solgold Plc [2024] FCA 594

DHI22 v Qatar Airways Group Q.C.S.C [2023] FCA 616

Ford, in the matter of Careers Australia Group Limited (in liq) v Mansfield [2022] FCA 173

Heenan (Receiver), in the matter of Ruby Apartments Pty Ltd (in liq) v Ralan Paradise No 1 Pty Ltd (in liq) [2020] FCA 1878; 149 ACSR 205

Kosmos Capital Pty Ltd v Turiya Ventures LLC [2019] FCA 528

Sanum Investments Limited v ST Group Co., Ltd (No 2) [2019] FCA 1047

Tax Practitioners Board v Buckland [2022] FCA 1376

Division: Fair Work Division

Registry: Victoria

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 52

Date of hearing: 14 June 2024

Counsel for the Applicant: Ms R Preston

Solicitor for the Applicant: Longton Legal

Counsel for the First and Second Respondents: Mr N Furlan

Solicitor for the First and Second Respondents: Lander & Rogers

Solicitor for the Third and Fourth Respondents: No appearance

ORDERS

VID 1048 of 2023

BETWEEN:
ALISON HAIRE

Applicant

AND:
WORKCO AUSTRALIA PTY LTD (ACN 653 085 253)

First Respondent

KENNETH O’FRIEL

Second Respondent

MEGAN KLIMEN

Third Respondent

FILECOIN FOUNDATION
Fourth Respondent

ORDER MADE BY:

HORAN J

DATE OF ORDER:

14 JUNE 2024

THE COURT ORDERS THAT:
Service
1.Pursuant to r 10.48 of the Federal Court Rules 2011 (Cth) (Rules), the following documents are taken to have been served on each of the third and fourth respondents on the date of these orders:
(a)Amended originating application dated 13 March 2024;
(b)Amended statement of claim dated 13 March 2024; and
(c)Applicant’s genuine steps statement dated 13 March 2024.

2.Pursuant to rr 10.24 and 10.44 of the Rules, the applicant may serve the following documents on the third and fourth respondents:
(a)notice in accordance with Form 26A and r 10.43B of the Rules; and
(b)a copy of these orders,

by emailing copies of the documents to matt@fil.org and megan@fil.org, and those documents will be taken to have been served on each of the third…

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: [2024] FCA 668
Decision Date: 14 June 2024

CaseChat Overview and Summary

The case of Haire v WorkCo Australia Pty Ltd involves an application by the applicant, Haire, for service of legal documents on two respondents who are located outside Australia. The matter was heard in the Federal Court. The primary issue before the court was whether the applicant could apply for deemed service of documents outside Australia under rule 10.48 of the Federal Court of Australia Rules 2011 (Cth) and whether substituted service under rule 10.24 was appropriate.

The court considered whether it was practicable to serve the documents on the respondents in accordance with the Hague Convention, and whether there was sufficient evidence that the documents had been brought to the attention of the respondents. The court determined that the application for deemed service should be granted, as it was reasonable and practicable to serve the documents by email. The court also found that the evidence presented was sufficient to support the application for substituted service, given the difficulties in serving the respondents directly.

The orders of the court reflect these findings, allowing for deemed service of certain documents and providing for substituted service through email. The respondents were required to file a notice of address for service within a specified timeframe, and the matter was listed for a further case management hearing. Costs were reserved pending further developments in the case.

Orders

Orders of the court

Service

1. Pursuant to r 10.48 of the Federal Court Rules 2011 (Cth) (Rules), the following documents are taken to have been served on each of the third and fourth respondents on the date of these orders:

(a) Amended originating application dated 13 March 2024;

(b) Amended statement of claim dated 13 March 2024; and

2. Pursuant to rr 10.24 and 10.44 of the Rules, the applicant may serve the following documents on the third and fourth respondents:

(a) notice in accordance with Form 26A and r 10.43B of the Rules; and

(b) a copy of these orders,

by emailing copies of the documents to matt@fil.org and megan@fil.org, and those documents will be taken to have been served on each of the third and fourth respondents on the date that those emails are sent.

3. Pursuant to r 10.24 of the Rules, until such time as the third and fourth respondents file and serve a notice of address for service, or further order, the applicant may serve any further documents in this proceeding on each of the third and fourth respondents by the applicant sending those documents by email to matt@fil.org and megan@fil.org, and those documents will be taken to have been served on each of the third and fourth respondents on the date that those emails are sent.

Other orders

4. Each of the third and fourth respondents file a notice of address for service within 14 days of the date of service of these orders.

5. By 4.00pm on 12 July 2024, each respondent is to file and serve a defence to the applicant’s amended statement of claim.

6. By 4.00pm on 2 August 2024, the applicant is to file and serve any reply to the defences filed by each of the respondents.

7. The matter be listed for a further case management hearing on 16 August 2024 at 9.30am.

8. Costs be reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	VID 1048 of 2023
Judgment of:	HORAN J
Date of judgment:	14 June 2024
Date of publication of reasons:	21 June 2024
Catchwords:	PRACTICE AND PROCEDURE – service on persons in a foreign country – application for deemed service of documents outside Australia under r 10.48 of the Federal Court of Australia Rules 2011 (Cth) – application for substituted service under r 10.24 – whether practicable to serve documents on person outside Australia in accordance with Hague Convention – whether evidence that documents brought to the attention of the person – application granted
Legislation:	Federal Court Rules 2011 (Cth) rr 10.24, 10.42, 10.44, 10.46, 10.43B, 10.48, 10.49
Cases cited:	Australian Securities and Investments Commission v China Environment Group Ltd [2013] FCA 286 bCode Pty Ltd (in liq) v Holford [2018] FCA 798 British American Tobacco Australasia Limited v Taleb (No 1) [2012] FCA 1065 Commissioner of Taxation v Caratti (No 2) [2018] FCA 1500 Cuzzubbo v Solgold Plc [2024] FCA 594 DHI22 v Qatar Airways Group Q.C.S.C [2023] FCA 616 Ford, in the matter of Careers Australia Group Limited (in liq) v Mansfield [2022] FCA 173 Heenan (Receiver), in the matter of Ruby Apartments Pty Ltd (in liq) v Ralan Paradise No 1 Pty Ltd (in liq) [2020] FCA 1878; 149 ACSR 205 Kosmos Capital Pty Ltd v Turiya Ventures LLC [2019] FCA 528 Sanum Investments Limited v ST Group Co., Ltd (No 2) [2019] FCA 1047 Tax Practitioners Board v Buckland [2022] FCA 1376
Division:	Fair Work Division
Registry:	Victoria
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	52
Date of hearing:	14 June 2024
Counsel for the Applicant:	Ms R Preston
Solicitor for the Applicant:	Longton Legal
Counsel for the First and Second Respondents:	Mr N Furlan
Solicitor for the First and Second Respondents:	Lander & Rogers
Solicitor for the Third and Fourth Respondents:	No appearance

ORDER MADE BY:	HORAN J
DATE OF ORDER:	14 JUNE 2024