Horvat & Juric (No 2)
[2022] FedCFamC1F 525
Federal Circuit and Family Court of Australia
(DIVISION 1)
Horvat & Juric (No 2) [2022] FedCFamC1F 525
File number(s): SYC 5613 of 2017 Judgment of: ALDRIDGE J Date of judgment: 8 July 2022 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Where the applicant seeks an order for substituted service – Application granted. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 2.34(2) Division: Division 1 First Instance Number of paragraphs: 6 Date of hearing: 8 July 2022 Place: Sydney (via video link) Counsel for the Applicant: Mr Eardley Solicitor for the Applicant: S & R Lawyers Counsel for the Respondent: Mr Doupe Solicitor for the Respondent: Garry Pickering Solicitors ORDERS
SYC 5613 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HORVAT
Applicant
AND: MR B JURIC
Respondent
order made by:
ALDRIDGE J
DATE OF ORDER:
8 JULY 2022
THE COURT ORDERS THAT:
1.The requirement for personal service of the below subpoenas are dispensed with.
2.The subpoena issued to Mr N and dated 2 May 2022 shall be effected as personal service in the following means:
(a)Text message to mobile number: …; or
(b)Leave the subpoena at home address known as Q Street, Suburb M NSW …; or
(c)By email to the email address ...; or
(d)Leave the subpoena at the address of Mr N’s solicitor being Mr O of R Solicitors located at S Street, Sydney NSW …; or
(e)By email to the email address of Mr N’s solicitor Mr O of R Solicitors: ...; and/or
(f)The person known as Mr O at R Solicitors who is by occupation a solicitor.
3.The subpoena issued to Mr B Juric and dated 18 May 2022 shall be effected as personal service in the following means:
(a)Leave the subpoena in a sealed envelope addressed to Mr B Juric at the business address known as and located at U Street, Suburb V NSW …; or
(b)Leave the subpoena in a sealed envelope addressed to Mr B Juric at the home address known as and located at W Street, Suburb P NSW ….
4.The costs of this application are reserved to the final hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Horvat & Juric (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:
This is an application for substituted service of two subpoenas to attend, to give evidence and to produce documents. They relate to property proceedings between the present parties, which are listed for two days, commencing on 18 July 2022. One of the issues in those proceedings is whether or not the respondent has engaged in cash dealings that he has not disclosed either to the applicant or in his financial records.
The evidence of Mr N is said to be relevant because he entered into a building contract with a company owned and controlled by the respondent. It is said that the books and records of that company do not disclose that contract or any income from it. Accordingly, documents are sought from Mr N as to his dealings with the respondent’s company in relation to that contract.
A process server attended his home on 10 May 2022. Mr N was not home but the process server left a calling card. There was no response, but on 15 May 2022, the process server rang a telephone number he had been given, and the person who answered the phone call described himself as Mr N and requested that the process server attend on his work address to serve him on 17 May 2022. The process server arrived at the address on that day but was unable to find Mr N with general enquiries. He rang the telephone number he had been given, but Mr N said he would not be meeting the process server and would not make himself available for service.
Clearly enough, the applicant has the phone number of Mr N. Perusal of the contract for sale has revealed his address, an email address, the name of his solicitor and the solicitor’s address. In addition, Mr N’s solicitor has corresponded via email, in his capacity as Mr N’s solicitor, with the applicant.
Rule 2.34(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) sets out the factors that the Court may have regard to when considering an application for substituted service under the rule. It seems to me that the proposed means of service are likely to bring the document to the attention of Mr N, and that all reasonable steps have been taken to serve him. The nature of the proceedings is such that his evidence is clearly relevant to the proceedings, and it is likely that the proposed means of service will bring them to his attention.
The other affidavit is directed to Mr B Juric, who is the brother of the respondent and a co-director of a company called X Pty Ltd, and it owns a block of land. The interest of Mr B Juric and the respondent in that company and in that property are the subject of the proceedings. In short, it is who has paid for the property.
Therefore, the subpoena seeking Mr B Juric’s attendance at the hearing to give evidence and production of documents clearly relate to the proceedings and are relevant to the them.
Only two attempts of service have been made on Mr B Juric, both on the same day. That is certainly, to say the least, the minimum that is required. However, a person at that property told the process server that Mr B Juric was not home but would pass on the contact details to the process server. The process server has not received a call.
In the circumstances, I think all reasonable steps have been taken to serve Mr B Juric. He has sworn an affidavit in these proceedings. Surely, he is therefore aware of them and the significance of the subpoena would not be lost on him.
Indeed, a reasonable inference is that he already has the subpoena because a copy of it was left with the person at the premises on 26 May 2022.
I am satisfied, therefore, that all reasonable steps have been taken to serve Mr B Juric. I am also satisfied that the proposed method of service is likely to bring the documents to his attention because it is to be served at the home address that is known to be his and it also to be served at the address of the company X Pty Ltd.
The application is opposed by the respondent on two bases. The first is that there is a delay in bringing the application and that is so. The attempted service took place in mid to late May 2022 and the application for substituted service was only filed on 29 June 2022.
However, the subpoenas seek the witnesses to attend, to give evidence and to produce the documents on the first day of hearing. Therefore, an earlier application would not have resulted in the earlier production of documents.
The fact that the respondent will get the documents on that date is what would have occurred, had the application been brought earlier and no relevant prejudice has been identified.
The second submission is that there was inadequate evidence to support the application. As can be seen, I have not accepted that submission.
I certify that the preceding six (6) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 22 July 2022
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