Health Services Union v Asmar (No 3) - [2025] FCA 423

FEDERAL COURT OF AUSTRALIA
Health Services Union v Asmar (No 3) [2025] FCA 423

File number: VID 917 of 2024

Judgment of: DOWLING J

Date of judgment: 4 April 2025

Date of publication of reasons: 30 April 2025

Catchwords: PRACTICE AND PROCEDURE – substituted service – whether it is “not practicable” to effect personal service pursuant to r 10.24 of the Federal Court Rules 2011 (Cth) – will the proposed method of service bring knowledge of the documents - orders for substituted service made

Legislation:
Federal Court of Australia Act 1976 (Cth) s 37M

Federal Court Rules 2011 (Cth) r 10.24

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

Ross v Cotter [2015] FCA 310

Royal Express Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) v Huang, in the matter of Royal Express Pty Ltd (No 3) [2021] FCA 611

Division: Fair Work Division

Registry: Victoria

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 22

Date of hearing: 4 April 2025

Counsel for the Applicant: Mr M W Harding SC and Mr B Bromberg

Solicitor for the Applicant: Slater & Gordon

Counsel for the First Respondent: Mr G Lake

Solicitor for the First Respondent: Cornwalls

Solicitor for the Third Respondent: Peter Vitale

ORDERS

VID 917 of 2024

BETWEEN:
HEALTH SERVICES UNION

Applicant

AND:
DIANA ASMAR

First Respondent

RHONDA BARCLAY

Second Respondent

DAVID EDEN (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

DOWLING J

DATE OF ORDER:

4 APRIL 2025

THE COURT ORDERS THAT:
1.Pursuant to rule 10.24 of the Federal Court Rules 2011, service upon the Second Respondent and the Fourth to Fifteenth Respondents of:
(a)the Affidavit of Lani Dumas dated 20 December 2024;
(b)the Affidavit of Brianna Leigh Macks dated 13 January 2025;
(c)the Affidavit of Declan Redden dated 15 January 2025;
(d)the Affidavit of Lloyd Williams dated 16 January 2025;
(e)the Affidavit of Jake Sebastian McGuiness dated 17 January 2025;
(f)the Affidavit of Ray Collins dated 17 January 2025;
(g)the Affidavit of David Eden dated 20 January 2025
(h)the Affidavit of Katie Elaine Bourne dated 28 February 2025;
(i)the Affidavit of Charlie Donnelly dated 2 April 2025;
(j)the Applicant’s interlocutory application dated 3 April 2025;
(k)the Affidavit of Geoff Borenstein dated 4 April 2025 filed by the applicant in support of its claim for the interlocutory relief referred to in the preceding paragraph;
(l)any other document that is filed by the parties in this proceeding;

be effected, and taken to have been effected, by emailing a copy of those documents to them at the email addresses referred to in the affidavit of Geoffrey Borenstein dated 10 September 2024.

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

REASONS FOR JUDGMENT
(Delivered ex tempore, revised from transcript)
DOWLING J
INTRODUCTION AND BACKGROUND

By its interlocutory application dated 4 April 2025 the applicant, the Health Services Union, seeks an order for substituted service of certain documents (and other documents to…

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.

Keep reading for free

Create a free CaseChat account to read Health Services Union v Asmar (No 3) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] FCA 423
Decision Date: 4 April 2025

CaseChat Overview and Summary

Health Services Union was the applicant in this proceeding in the Federal Court of Australia, seeking substituted service orders under rule 10.24 of the Federal Court Rules 2011 (Cth) for the service of certain documents on unrepresented respondents. The primary issue before the Court was whether it was not practicable to serve the documents in the ordinary way. The Court had to determine whether the Union had demonstrated that it was not practicable to serve the documents in the ordinary way and whether the proposed method of substituted service was likely to bring the relevant documents to the attention of the party to be served. The Court found that the Union had demonstrated that it was not practicable to serve the documents in the ordinary way and that the proposed method of substituted service, i.e., emailing the documents to the unrepresented respondents, would likely bring the documents to their attention. The Court noted that the overarching purpose of the civil practice and procedure provisions was to facilitate the just resolution of disputes according to law and as quickly, inexpensively, and efficiently as possible. The Court was satisfied that the substituted service order would achieve this purpose in the circumstances of this case. The Court granted the Union's application for substituted service orders and ordered that certain documents be served on the unrepresented respondents by emailing them to the email addresses referred to in the affidavit of Geoffrey Borenstein dated 10 September 2024.

Orders

Orders of the court

1. Pursuant to rule 10.24 of the Federal Court Rules 2011, service upon the Second Respondent and the Fourth to Fifteenth Respondents of:

(a) the Affidavit of Lani Dumas dated 20 December 2024;

(b) the Affidavit of Brianna Leigh Macks dated 13 January 2025;

(d) the Affidavit of Lloyd Williams dated 16 January 2025;

(e) the Affidavit of Jake Sebastian McGuiness dated 17 January 2025;

(f) the Affidavit of Ray Collins dated 17 January 2025;

(g) the Affidavit of David Eden dated 20 January 2025

(h) the Affidavit of Katie Elaine Bourne dated 28 February 2025;

(i) the Affidavit of Charlie Donnelly dated 2 April 2025;

(j) the Applicant’s interlocutory application dated 3 April 2025;

(k) the Affidavit of Geoff Borenstein dated 4 April 2025 filed by the applicant in support of its claim for the interlocutory relief referred to in the preceding paragraph;

(l) any other document that is filed by the parties in this proceeding;

be effected, and taken to have been effected, by emailing a copy of those documents to them at the email addresses referred to in the affidavit of Geoffrey Borenstein dated 10 September 2024.

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

For the reasons set out below I consider it appropriate to make the order for substituted service sought by the Union.RULE, PRINCIPLES AND CONSIDERATION The material the subject of this application does not require personal service, but the substituted service order is sought to ensure that the material is properly and effectively brought to the attention of the unrepresented respondents. Rule 10.24 of the Rules provides for substituted service where it is not practicable to serve a person in the ordinary way. In Commissioner of Taxation v Caratti (No 2) [2018] FCA 1500, Colvin J at [10] described the circumstances in which r 10.24 applies. Justice Colvin said: The preponderance of authority is to the effect that the current rule requires the applicant for orders for substituted service to demonstrate that it is not sensible or realistic to effect personal service even though it may be possible or feasible to do so. This will usually be done by taking steps to effect personal service and providing evidence as to any difficulties that have arisen in doing so. It is not necessary to go so far as to demonstrate that there is an inability to effect personal service or that it would be extraordinarily difficult to do so. Further, there must be a proper evidential basis upon which to conclude that in all probability the mode of substituted service that is proposed will bring the relevant documents to the attention of the party to be served. The words “not practicable” in r 10.24 should be applied in a way that promotes the overarching purpose of the civil practice and procedure provisions, which is to facilitate the just resolution of disputes according to law and as quickly, inexpensively, and efficiently as possible: Federal Court of Australia Act 1976 (Cth) s 37M. In Ross v Cotter [2015] FCA 310, Reeves J held (at [1]) the word “practicable” in the expression “not practicable”, “has been held to have a wide meaning which will depend on the circumstances of the particular proceeding”. To support their application for substituted service, the Union relies on:(a)First Affidavit of Geoff Borenstein dated 10 September 2024;(b)Third Affidavit of Emma Harper dated 20 December 2024; and(c)Eleventh Affidavit of Geoff Borenstein dated 4 April 2025. The Union submits that it is not practicable to serve the documents in the ordinary way because: First, it does not have a home address for all of the unrepresented respondents. Second, the only point of contact it has for all the unrepresented respondents is the Branch or other email addresses. Third, in respect of two of the unrepresented respondents for which it does have a home address, service was attempted by use of that home address and failed. Fourth, in all of the other circumstances of this case, it is not practicable to serve in the ordinary way. I am satisfied, on the material, and in the circumstances, before me that it is not practicable to serve the documents in the ordinary way. I am satisfied of those matters at [17](1) – (3) above. Further, this matter is to be heard in relatively expedited and urgent circumstances, supporting the need for such an order.

File number:	VID 917 of 2024
Judgment of:	DOWLING J
Date of judgment:	4 April 2025
Date of publication of reasons:	30 April 2025
Catchwords:	PRACTICE AND PROCEDURE – substituted service – whether it is “not practicable” to effect personal service pursuant to r 10.24 of the Federal Court Rules 2011 (Cth) – will the proposed method of service bring knowledge of the documents - orders for substituted service made
Legislation:	Federal Court of Australia Act 1976 (Cth) s 37M Federal Court Rules 2011 (Cth) r 10.24
Cases cited:	Commissioner of Taxation v Caratti (No 2) [2018] FCA 1500 Ross v Cotter [2015] FCA 310 Royal Express Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) v Huang, in the matter of Royal Express Pty Ltd (No 3) [2021] FCA 611
Division:	Fair Work Division
Registry:	Victoria
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	22
Date of hearing:	4 April 2025
Counsel for the Applicant:	Mr M W Harding SC and Mr B Bromberg
Solicitor for the Applicant:	Slater & Gordon
Counsel for the First Respondent:	Mr G Lake
Solicitor for the First Respondent:	Cornwalls
Solicitor for the Third Respondent:	Peter Vitale

ORDER MADE BY:	DOWLING J
DATE OF ORDER:	4 APRIL 2025