JSA Maule Pty Ltd v Wilson
[2012] FCA 838
FEDERAL COURT OF AUSTRALIA
JSA Maule Pty Ltd v Wilson [2012] FCA 838
Citation: JSA Maule Pty Ltd v Wilson [2012] FCA 838 Parties: JSA MAULE PTY LTD (ACN 129 210 322), AUSSIE KIWI PTY LTD (ACN 068 638 013), SHARON MAULE, MAREE BALLESTRINO and JOHN BALLESTRINO v RANDAL WILSON and ANTHONY UNDERWOOD File number: VID 1296 of 2011 Judge: BROMBERG J Date of judgment: 9 August 2012 Catchwords: PRACTICE AND PROCEDURE – service of documents – whether order for substituted service should be made – application granted Legislation: Federal Court Rules 2011 r 10.24
Trade Practices Act 1974 (Cth) s 52
Date of hearing: Heard on the papers Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 11 Counsel for the Applicants: Mr N Sevdalis of Sevdalis Lawyers & Conveyancers Counsel for the First and Second Respondents: The first and second respondents did not appear
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1296 of 2011
BETWEEN: JSA MAULE PTY LTD (ACN 129 210 322)
First ApplicantAUSSIE KIWI PTY LTD (ACN 068 638 013)
Second ApplicantSHARON MAULE
Third ApplicantMAREE BALLESTRINO
Fourth ApplicantJOHN BALLESTRINO
Fifth ApplicantAND: RANDAL WILSON
First RespondentANTHONY UNDERWOOD
Second Respondent
JUDGE:
BROMBERG J
DATE OF ORDER:
9 AUGUST 2012
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The applicants serve a copy of:
(a) the Amended Application;
(b) the Amended Statement of Claim;
(c) the Court’s reasons for judgment dated 9 August 2012; and
(d) the Court’s orders made on 31 July 2012 and 9 August 2012
(“the Documents”),
upon Bede King of Tobin King Lateef, Lawyers and Notaries, by sending a copy of the Documents by registered mail addressed to Bede King of Tobin King Lateef, Lawyers and Notaries, Level 10, 217 George Street, Brisbane, Queensland.
2.Seven days after compliance by the applicants with order 1, the Amended Application and Amended Statement of Claim be taken to have been served upon Randal Wilson.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1296 of 2011
BETWEEN: JSA MAULE PTY LTD (ACN 129 210 322)
First ApplicantAUSSIE KIWI PTY LTD (ACN 068 638 013)
Second ApplicantSHARON MAULE
Third ApplicantMAREE BALLESTRINO
Fourth ApplicantJOHN BALLESTRINO
Fifth ApplicantAND: RANDAL WILSON
First RespondentANTHONY UNDERWOOD
Second Respondent
JUDGE:
BROMBERG J
DATE:
9 AUGUST 2012
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
In this matter the applicants claim that misleading and deceptive conduct in breach of s 52 of the Trade Practices Act 1974 (Cth) (“the TPA”) was engaged in by a former corporation – Kenny’s Cardiology (Australia) (Pty Ltd) (“Kenny’s”).
The Amended Statement of Claim contains further allegations made against the two respondents – Randal Wilson (“Mr Wilson”) and Anthony Underwood (“Mr Underwood”). The pleading alleges that Mr Wilson was engaged as the director of sales of Kenny’s and that Mr Underwood was engaged either by Kenny’s parent company or alternatively as the Chief Executive Officer of Kenny’s. The applicants claim that Mr Wilson and Mr Underwood were involved in the misleading and deceptive conduct alleged against Kenny’s. Damages are sought in reliance upon the accessorial liability imposed by the TPA.
The applicants have been unable to locate Mr Wilson for the purpose of serving him with the Amended Application and the Amended Statement of Claim. They have therefore applied pursuant to r 10.24 of the Federal Court Rules 2011 (“the Rules”) for substituted service. In substance, they seek an order that substituted service be effected upon Mr Wilson’s solicitor. In support of that applicant, the applicants rely on three affidavits made by their solicitor Nicholas Sevdalis. Those affidavits were made on 5 and 12 June and 1 August 2012.
For the following reasons, and on the basis of the material deposed to in the affidavits made by Mr Sevdalis, I am satisfied that an order for substituted service should be made.
I am satisfied that the applicants have made reasonable but unsuccessful efforts to locate Mr Wilson and that it is not practical for the applicants to personally serve Mr Wilson in accordance with the Rules.
Having made enquires with a colleague of Mr Wilson, Mr Sevdalis received a telephone call from Mr Wilson. Mr Wilson declined to give his address but identified Tobin King Lateef, Lawyers and Notaries, Level 10, 217 George Street, Brisbane as his solicitors.
Mr Sevdalis telephoned Tobin King Lateef and spoke to a receptionist. He was advised that Tobin King Lateef acted for Mr Wilson, that the solicitor at that firm who acted for Mr Wilson was Bede King. He was further advised that Tobin King Lateef had not received instructions from Mr Wilson to accept process in relation to this proceeding at that time.
Mr Sevdalis emailed copies of the Amended Application and Amended Statement of Claim to Tobin King Lateef on two occasions, but has received no response.
Rule 10.24 of the Rules provides that if it is not practicable to serve a document on a person in a way required by the Rules, an application may be made for an order substituting another method of service. The rule permits the making of an order specifying that a document is taken to have been served on the happening of a specified event or at the end of a specified time.
I am satisfied that if the Amended Application and Amended Statement of Claim are served upon Bede King at Tobin King Lateef, it is likely that those documents will come to the attention of Mr Wilson. I am so satisfied because on the material before me, I consider that Bede King commonly acts as Mr Wilson’s solicitor and is likely to know his whereabouts and that when served with the pleadings, these reasons for judgment and the orders I intend to make, Bede King will take the necessary steps to bring each of those documents to the attention of Mr Wilson. I will also order that my orders made on 31 July 2012 be served so that notice is provided to Mr Wilson that a Directions Hearing will take place at 9.30 am on 19 September 2012.
Accordingly, I will make orders as follows:
(i)The applicants serve a copy of:
(a) the Amended Application;
(b) the Amended Statement of Claim;
(c) the Court’s Reasons for Judgment dated 9 August 2012; and
(d) the Court’s orders made on 31 July 2012 and 9 August 2012
(“the Documents”),
upon Bede King of Tobin King Lateef, Lawyers and Notaries, by sending a copy of the Documents by registered mail addressed to Bede King at Tobin King Lateef, Lawyers and Notaries, Level 10, 217 George Street, Brisbane, Queensland.
(ii)Seven days after compliance by the applicants with order (i), the Amended Application and Amended Statement of Claim be taken to have been served upon Randal Wilson.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate:
Dated: 9 August 2012
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