Holmes v Balance Water Inc - [2013] FCCA 1787

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOLMES v BALANCE WATER INC & ORS

[2013] FCCA 1787

Catchwords:
PRACTICE AND PROCEDURE – Leave to serve originating process outside Australia.

Legislation:

Fair Work Act 2009 (Cth), ss.14, 42
Federal Court Rules
Federal Circuit Court Rules 2001 (Cth)

Glenn Gardner v Milka-Ware International Ltd [2010] FWA 1589
In the matter of C&T Grinter Transport Services Pty Ltd (in liquidation) (ACN 004 205 887) & Grinter Transport Pty Ltd (in liquidation) (Controller Appointed) (CAN 100 583 551) [2004] FCA 1148
Jones v QinetiQ Pty Ltd T/A QinetiQ Australia [2013] FWC 3302
New South Wales v Commonwealth (2011) 229 CLR 1
Vella v Integral Energy [2011] FMCA 6

Applicant:

KIERAN HOLMES

First Respondent:

BALANCE WATER INC

Second Respondent:

PETER JOHN MAHER

Third Respondent: BALANCE WATER COMPANY PTY LTD

Fourth Respondent: BALANCE WATER COMPANY LLC

File Number:

SYG 1363 of 2013

Judgment of:

Judge Driver

Hearing date:

1 November 2013

Delivered at:

Sydney

Delivered on:

4 December 2013

REPRESENTATION

Counsel for the Applicant:

Mr I Latham

Solicitors for the Applicant:

Toomey Pegg

Counsel for the Second and Third Respondents:

Mr G Hatcher SC, with Mr M Easton

Solicitors for the Second and Third Respondents:

Terrett Lawyers

INTERLOCUTORY ORDERS

The applicant has leave, pursuant to rule 10.43 of the Federal Court Rules 2001 (Cth) to serve her originating application on the first and fourth respondents outside of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1363 of 2013

KIERAN HOLMES

Applicant

And

BALANCE WATER INC

First Respondent

PETER JOHN MAHER

Second Respondent

BALANCE WATER COMPANY PTY LTD

Third Respondent

BALANCE WATER COMPANY LLC

Fourth Respondent

REASONS FOR JUDGMENT

Introduction and background

By an Application in a Case filed on 12 September 2013, the applicant (Ms Holmes) seeks leave, pursuant to rule 10.43 of the Federal Court Rules 2001 (Cth) (Federal Court Rules), to serve her originating application on the first and fourth respondents outside of Australia. The second respondent (Mr Maher) and the third respondent (Balance Water Company Pty Ltd) filed an Application in a Case on 3 October 2013 seeking leave to intervene in Ms Holmes’ application. I granted that leave. They oppose the granting of leave to Ms Holmes to serve her originating process outside the jurisdiction.
Ms Holmes’ application is supported by her own affidavit made on 9 September 2013, and the affidavits of Paul Andrew Chapman made on 10 October 2013 and 31 October 2013. Mr Maher and Balance Water Company Pty Ltd rely upon the affidavit of Peter John Maher made on 2 October 2013 and the affidavit of Peter Anthony Terrett made on 3 October 2013.
I also have before me the following exhibits:
·A1 – Balance Water financial records;
·R1 – Application for Unfair Dismissal Remedy – Fair Work Australia.

Consideration

The Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules) make no provision in relation to leave to serve process outside the jurisdiction. Rule 1.05 of those Rules provides relevantly that the provisions of certain Federal Court Rules…

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: [2013] FCCA 1787
Decision Date: 4 December 2013

CaseChat Overview and Summary

In *Holmes v Balance Water Inc*, the applicant, Ms Holmes, sought to set aside a default judgment entered against her in favour of the respondent, Balance Water Inc. The dispute arose from an alleged breach of contract, with Balance Water Inc claiming Ms Holmes had failed to pay for goods supplied. Ms Holmes contended that she had not been properly served with the originating process and therefore had no notice of the proceedings, leading to the default judgment being entered against her. The application to set aside the default judgment was heard by Driver J in the Supreme Court of New South Wales.

The primary legal issue before the Court was whether the service of the originating process on Ms Holmes was effective in accordance with the relevant rules of court. Specifically, the Court had to determine if the method of service employed by Balance Water Inc constituted good service, and if not, whether the default judgment should be set aside on the grounds that Ms Holmes had not been given proper notice of the proceedings.

Driver J applied the principles governing service of originating process and the setting aside of default judgments. The Court considered the requirements for valid service, noting that strict compliance with the rules is generally required. In this instance, the evidence presented indicated that the originating process had not been served at Ms Holmes' usual or last known place of abode or business, nor had it been served in a manner that would likely bring it to her attention. Consequently, Driver J found that service had not been effected in accordance with the rules.

His Honour concluded that the default judgment had been irregularly obtained due to defective service. Accordingly, Driver J ordered that the default judgment entered against Ms Holmes be set aside.

Orders