Holden Ltd v Automotive, Food, Metals, Engineering, Printing &

[2002] FCA 725

FEDERAL COURT OF AUSTRALIA

Holden Ltd v Automotive, Food, Metals, Engineering, Printing &
Kindred Industries Union of Australia [2002] FCA 725

HOLDEN LTD (ACN 006 893 232) v AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION OF AUSTRALIA & ORS

V 1299 OF 2001

NORTH J
14 JUNE 2002
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1299 OF 2001

BETWEEN:

HOLDEN LTD (ACN 006 893 232)
APPLICANT

AND:

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION OF AUSTRALIA
FIRST RESPONDENT

CRAIG JOHNSTON
SECOND RESPONDENT

PAUL WISNIEWSKI
THIRD RESPONDENT

BRENDAN WHELAN
FOURTH RESPONDENT

JUDGE:

NORTH J

DATE OF ORDER:

14 JUNE 2002

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.   To the extent necessary, the requirement under Order 40 rule 8 of the Federal Court Rules regarding personal service of the following documents on the second respondent be dispensed with:

(a)Notice of Motion and Statement of Charges dated 29 May 2002 together with the order of Justice North made on 7 January 2002;

(b)Affidavit of Angela Pauline Robertson sworn 27 May 2002;

(c)Affidavit of Andria Kaye Wyman sworn 27 May 2002;

(d)Affidavit of Michael Sullivan sworn 27 May 2002;

(e)Affidavit of John Dore sworn 27 May 2002;

(f)Affidavit of Gregory Edward Wagstaff sworn 27 May 2002;

(g)Affidavit of Daniel Forrester Sheahan King sworn 28 May 2002;

(h)Affidavit of Service of Marcus Opit sworn 31 January 2002; and

(i)Supplementary Affidavit of Service of Marcus Opit sworn 28 May 2002.

2.   The directions hearing of the notice of motion be adjourned to 10:15 am on 16 September 2002.

3.   The notice of motion be listed for hearing on 8, 9 and 10 October 2002.

4.   The respondents notify the applicant in writing by 19 July 2002 of the deponents required for cross-examination at the hearing of the motion.

5.   There be no order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V1299 OF 2001

BETWEEN:

HOLDEN LTD (ACN 006 893 232)
APPLICANT

AND:

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION OF AUSTRALIA
FIRST RESPONDENT

CRAIG JOHNSTON
SECOND RESPONDENT

PAUL WISNIEWSKI
THIRD RESPONDENT

BRENDAN WHELAN
FOURTH RESPONDENT

JUDGE:	NORTH J
DATE:	14 JUNE 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant has filed a motion for contempt against the first and second respondents in this application.  The applicant has apparently served the first respondent but seeks orders in relation to service of the second respondent as set out in paragraph 1 of the draft minute.

2. Order 40 rule 8 of the Federal Court Rules (FCR) requires that the notice of motion and statement of charges and affidavits be served personally on the accused person.  The second respondent is represented in the main proceedings by solicitors.  Those solicitors have appeared before me in a directions hearing today in relation to the main proceedings, but do not have instructions on behalf of Mr Johnston in respect of the motion for contempt.

3. Consequently, I have dealt with the application for orders dispensing with the requirement of personal service as an ex parte matter.  There is voluminous affidavit evidence before me establishing that the applicant has served the notice of motion, statement of charges and the relevant affidavits on 31 May 2002 by facsimile on the second respondent by sending those documents to his solicitors in the main proceeding, Messrs Maurice Blackburn Cashman.  The applicant has also sent those documents by facsimile to the second respondent addressed to his place of work.  Being concerned that this service did not comply with the requirements of Order 40 rule 8, the applicant took steps to serve Mr Johnston personally on 11 June 2002.  The circumstances of this attempt are set out in an affidavit sworn by George Hakely on 14 June 2002.

4. Mr Hakely, who is a process server, describes handing the documents to Mr Johnston in very difficult circumstances.  He also explains that Mr Johnston, upon receipt of the documents, threw them on the ground and walked off.  Counsel for the applicant observed that the evidence probably establishes personal service and compliance with Order 40 rule 8.  But counsel pressed for an order relieving from that requirement under Order 1 rule 8 of the FCR as a matter of caution.  This was obviously a sensible course.  It would be highly undesirable for the matter to proceed with potentially elaborate evidence being filed only to find that the initiating service was ineffective.

5. It is established in Lazar v Taito (1985) 5 FCR 395 that the court has power under Order 1 rule 8 to dispense with the requirement of personal service in Order 40 rule 8. In that case the non-compliance with Order 40 rule 8 resulted from an error on the part of the legal advisers for the applicant. It seems that they may have been unaware of the requirement for personal service. McGregor J, at 403, said that:

   “The power to relieve from non-compliance would properly be exercised where there is no apparent injustice and where the error is only one of procedure.”

   Neaves J, at 414, said that the circumstances in which relief from non‑compliance would be ordered are limited by reason of the serious nature of contempt proceedings.  The circumstances of that case appear to be rather different to the circumstances of this case.

6. Nonetheless, the circumstances of this case, in my opinion, clearly justify the order.  The circumstances indicate the very high likelihood that the second respondent has already had notice of the documents in question.  At the directions hearing, his solicitors have agreed to a direction that he file an amended defence shortly.  That will no doubt require his attendance on, or communication with, his solicitors.  They have received notice of the contempt proceedings both by letter directed to him and in their capacity as solicitors for the first respondent.  It is inconceivable that he will not come to know of the proceedings, if he has not already come to know of them.  Added to this is the evidence of vigorous, if not, violent, attempt to avoid receipt of documents.  It should be noted that it may not have been clear to Mr Johnston that the documents, which were proffered by Mr Hakely, related to these proceedings.  Mr Hakely was not given an opportunity to volunteer an explanation of the particular nature of the documents being proffered. 

7. I will make the orders sought in paragraph 1 of the draft minute.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:             23 August 2002

Counsel for the Applicant:	Dr C N Jessup QC with Mr S J Wood
Solicitor for the Applicant:	Freehills
Counsel for the First Respondent:	Mr P Rozen
Solicitor for the First Respondent:	Maurice Blackburn Cashman
Date of Hearing:	14 June 2002
Date of Judgment:	14 June 2002