Hillier v Martin (No 5)

Case [2021] FCA 949


FEDERAL COURT OF AUSTRALIA

Hillier v Martin (No 5) [2021] FCA 949  

File number: SAD 113 of 2020
Judgment of: CHARLESWORTH J
Date of judgment: 6 August 2021
Date of publication of reasons 10 August 2021
Catchwords: PRACTICE AND PROCEDURE – company joined as a party to proceedings – company served with initiating documents in accordance with r 10.02 of the Federal Court Rules 2011 (Cth) and s 109X of the Corporations Act 2001 (Cth) – Court of its own initiative proposing orders fixing a date by which the company is to file a notice of address for service – notice of address for service to be filed four weeks after service of initiating documents on the company – Court proposing orders providing for service of documents on the company pending filing of the notice of address for service – directors seeking to be heard on the question and opposing the orders proposed – whether the continued requirement to serve documents on the company by delivery to a physical location is productive of unnecessary cost and delay
Legislation:

Corporations Act 2001 (Cth) s 109X

Federal Court of Australia Act 1976 (Cth) ss 37M, 37N

Federal Court Rules 2011 (Cth) rr 1.34, 1.35, 1.36, 1.40, 4.01, 9.05, 10.02, 11.02, 11.06

Cases cited: Hillier v Martin (No 4) [2021] FCA 710
Division: General Division
Registry: South Australia
National Practice Area: Commercial and Corporations
Sub-area: Commercial Contracts, Banking, Finance and Insurance
Number of paragraphs: 51
Date of hearing: Determined on the papers

ORDERS

SAD 113 of 2020
BETWEEN:

JAMES HILLIER

Applicant

AND:

VICTORIA MARTIN

First Respondent

NORDBURGER OPERATIONS PTY LTD

Second Respondent

ERIK VARI PTY LTD

Third Respondent

ORDER MADE BY:

CHARLESWORTH J

DATE OF ORDER:

6 AUGUST 2021

THE COURT ORDERS THAT:

1.The second respondent is to file and serve a notice of address for service on or before 11 August 2021.

2.Until a notice of address for service is filed by the second respondent, service by the applicant of any document in the proceeding upon the second respondent may be effected by emailing the document to each of the directors of the second respondent at the email addresses last used by them in any capacity to communicate with the applicant in relation to these proceedings.

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


REASONS FOR JUDGMENT

CHARLESWORTH J

  1. On 6 August 2021 I made orders administratively in this proceeding in the following terms:

    1.The second respondent is to file and serve a notice of address for service on or before 11 August 2021.

    2.Until a notice of address for service is filed by the second respondent, service by the applicant of any document in the proceeding upon the second respondent may be effected by emailing the document to each of the directors of the second respondent at the email addresses last used by them in any capacity to communicate with the applicant in relation to these proceedings.

    (the 6 August orders).

  2. As…

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AGLC
Hillier v Martin (No 5) [2021] FCA 949
Case
[2021] FCA 949
Decision Date

CaseChat Overview and Summary

In Hillier v Martin (No 5), the Federal Court of Australia was presented with an issue concerning the service of initiating documents on a company, Nordburger, that had been joined as a party to the proceedings. The primary concern was whether the continued requirement to serve documents on the company by delivery to a physical location, rather than electronically, was productive of unnecessary cost and delay.

The legal issues that the court had to decide involved interpreting Rule 10.02 of the Federal Court Rules 2011 (Cth) and section 109X of the Corporations Act 2001 (Cth) in relation to the service of documents on a company and its directors. Specifically, the court had to determine if the existing method of service was necessary or if alternative methods, such as electronic service, could be adopted without breaching the legislative requirements.

The court found that Rule 10.02 mandates that a document to be served personally on a corporation must be served in accordance with section 109X of the Corporations Act 2001. However, the court also recognised that section 109X allows for alternative service methods if permitted by other laws or if authorised by a court. The court reasoned that, while the current method of service complied with the statutory requirements, the continued use of this method could lead to unnecessary cost and delay, especially given the technological capabilities available for electronic service. Consequently, the court decided that it was appropriate to propose orders that would allow for the service of documents on the company by email until a notice of address for service was filed. The directors' opposition to this proposal was overruled as the court found that the benefits of electronic service outweighed the potential disadvantages.

Orders

Orders of the court

1. The second respondent is to file and serve a notice of address for service on or before 11 August 2021.

2. Until a notice of address for service is filed by the second respondent, service by the applicant of any document in the proceeding upon the second respondent may be effected by emailing the document to each of the directors of the second respondent at the email addresses last used by them in any capacity to communicate with the applicant in relation to these proceedings.

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

Rule 10.02 provides that a document that is to be served personally on a corporation must be served in accordance with s 109X of the Corporations Act 2001 (Cth). It relevantly provides:109X Service of documents(1) For the purposes of any law, a document may be served on a company by:(a) leaving it at, or posting it to, the company’s registered office; or(b)delivering a copy of the document personally to a director of the company who resides in Australia or in an external Territory; or(c)if a liquidator of the company has been appointed—leaving it at, or posting it to, the address of the liquidator’s office in the most recent notice of that address lodged with ASIC; or(d)if an administrator of the company has been appointed—leaving it at, or posting it to, the address of the administrator in the most recent notice of that address lodged with ASIC; or(e)if a restructuring practitioner for the company has been appointed—leaving it at, or posting it to, the address of the restructuring practitioner in the most recent notice of that address lodged with ASIC.(2)For the purposes of any law, a document may be served on a director or company secretary by leaving it at, or posting it to, the alternative address notified to ASIC under subsection 5H(2), 117(2), 205B(1) or (4) or 601BC(2). However, this only applies to service on the director or company secretary:(a) in their capacity as a director or company secretary; or(b)for the purposes of a proceeding in respect of conduct they engaged in as a director or company secretary.…(6) This section does not affect:(a)any other provision of this Act, or any provision of another law, that permits; or(b) the power of a court to authorise;a document to be served in a different way.… Persons who are joined as parties to a proceeding from the outset are ordinarily required to file a notice of address for service before the first return date: r 11.06. A notice of address for service for a company must be filed by a lawyer: r 11.02; and see r 4.01(2). Rule 9.05 provides that the Court may make an order joining a person as a party. A note to that Rule confirms that the Court may make various ancillary orders, including for the service of the joinder order and any other document in the proceeding, for the amendment of a document in the proceeding and for the filing of a notice of address for service by the joined party. The power to make orders of that kind may be sourced in other provisions of the Rules. They are an ordinary incident of the Court’s powers to make case management orders for the orderly progression of a matter to trial and do not usually give rise to controversy. At this juncture it is necessary to set out some relevant background. The 6 August orders were made two days after a long case management hearing concerning a number of disputed matters, including matters concerning the status of Nordburger as a party to these proceedings. At that hearing, Counsel for the applicant asked the Court to read an affidavit of the applicant’s solicitor Mr Gene Sykes Bidstrup, sworn that day. I had regard to the correspondence annexed to the affidavit when proposing and making the 6 August orders. Some of the events described below are disclosed in the affidavit. The events themselves are not in dispute.