Kanapathy v in de Braekt & Anor - [2010] FMCA 1015

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KANAPATHY v IN DE BRAEKT & ANOR

[2010] FMCA 1015

HUMAN RIGHTS – Unlawful discrimination on the basis of race.

PRACTICE AND PROCEDURE – Application for substituted service –difficulty in serving first respondent – likelihood of the means of substituted service bringing the proceedings to the attention of the first respondent.

Federal Court Rules (Cth), O 7 r.9
Federal Magistrates Act 1999 (Cth), s.13(3)(a)
Federal Magistrates Court Rules 2001 (Cth), rr.6.06(1), 6.14, 6.15

Ricegrowers Co Operative Ltd v ABC Containerline NV (1996) 138 ALR 480

Applicant:

NIRMALA KANAPATHY ON BEHALF OF RAJANDRAN KANAPATHY

First Respondent:

MEGAN IN DE BRAEKT

Second Respondent:

G4S CUSTODIAL SERVICES PTY LTD

File Number:

PEG 192 of 2010

Judgment of:

Lucev FM

Hearing date:

13 December 2010

Date of Last Submission:

13 December 2010

Delivered at:

Perth

Delivered on:

22 December 2010

REPRESENTATION

Counsel for the Applicant:

Mr S. Millman

Solicitors for the Applicant:

Slater & Gordon Lawyers

The First Respondent:

No appearance

Counsel for the Second Respondent:

Ms A. Beaumont

Solicitors for the Second Respondent:

HLS Legal

ORDERS

Service by way of substituted service be ordered to be effected on the first respondent in these proceedings by:
(a)facsimile of all relevant Court documents filed by the applicant and copies of all Orders made by the Court, including today’s Orders, to facsimile number 9361 8558, marked to the attention of the first respondent; and
(b)by email with respect to the same documents as in sub-paragraph (a) above, addressed to the first respondent at: [email protected],
by 24 December 2010.

An affidavit of service with respect to substituted service by the applicant on the first respondent be filed by 14 January 2011.
The matter otherwise be adjourned to 9:45am on 31 January 2011.
The costs with respect to substituted service be reserved to the adjourned directions hearing on 31 January 2011.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 192 of 2010

NIRMALA KANAPATHY ON BEHALF OF RAJANDRAN KANAPATHY

Applicant

And

MEGAN IN DE BRAEKT

First Respondent

G4S CUSTODIAL SERVICES PTY LTD

Second Respondent

REASONS FOR JUDGMENT

(Delivered in Chambers under s.13(3)(a) of the Federal Magistrates Act 1999 (Cth))

Introduction

At a directions hearing on 13 December 2010 an oral application was made by Counsel for Mrs Kanapathy for an order for substituted service on the first respondent, Ms in de Braekt.
An order for substituted service on Ms in de Braekt was made by the Court on 13 December 2010, as asked. The Court then indicated that Reasons for Judgment would be provided at a later date. These are those Reasons for Judgment.

History of the proceedings

The substantive application in these proceedings was filed by Mrs Kanapathy, on behalf of her husband, Mr Kanapathy, on 20 October 2010.
The matter was listed for a first directions hearing on 12 November 2010, at which time Mrs Kanapathy was self-represented. At this hearing, orders were made allowing Mrs Kanapathy to file and serve an affidavit outlining her attempts to serve Ms in de Braekt and for any oral application for substituted service to be made at an adjourned directions hearing on 29 November 2010.
No affidavit was filed in accordance with these orders, and on 24 November 2010 Slater & Gordon filed a notice of address for service on behalf of Mrs Kanapathy.
At the adjourned directions hearing on 29 November 2010, orders were made extending the time for filing an affidavit of attempted service and adjourning the directions hearing again to 13 December 2010. At the further adjourned hearing, the affidavit of attempted service[1] was filed in Court, by leave, and the oral application for substituted service was made.
[1] Affidavit of Rajandran Kanapathy, sworn 13 December 2010 (“Mr Kanapathy’s Affidavit”).

Substituted service – principles

The Federal Magistrates Court Rules 2001 (Cth)[2] provide for service by hand of an application starting a proceeding.[3]
[2] “FMC Rules”.
[3] FMC Rules, r.6.06(1).
The Court refers to rr.6.14 and 6.15 of the FMC Rules which provide as follows:
6.14 Substituted service
(1)    If, for any reason, it is impracticable to serve a document in a way required under this Part, the Court may make an order dispensing with service or substituting another way of serving the document.
(2)    The Court may specify the steps to be taken for bringing the document to the attention of the person to be served.
(3)    The Court may specify that the document is to be taken to have been served on the happening of a specified event or at the end of a specified time.
6.15 Matters to be taken into account
When making an order for dispensing with service or for substituted service, the Court may have regard to:
(a)    whether reasonable steps have been taken to attempt to serve the document; and
(aa) whether it is likely that the steps that have been taken have brought the existence and nature of the document to the attention of the person to be served; and
(b)    whether the person to be served could become aware of the existence and nature of the document by means of advertising or another means of communication that is reasonably available; and
(c)     the likely cost to the party serving the document, the means of that party and the nature of the proceedings; and
(d)    any other relevant matter.

Attempts at service

Mr Kanapathy’s Affidavit evidences the attempts at personal service and service by registered post made on Ms in de Braekt. Mr Kanapathy relevantly deposed that:
a)he had been advised and believed that Ms in de Braekt was a legal practitioner with offices in Albany Highway, Victoria Park;
b)on 25 October 2010 at approximately 8:50am Mrs Kanapathy went to Ms in de Braekt’s office at Victoria Park to hand deliver the application;
c)the office door was locked and Mrs Kanapathy told him that she then knocked on the glass doors several times but no one answered;
d)posted on the door were two telephone numbers to ring if no one answered the door;
e)Mrs Kanapathy told him that she then telephoned the two numbers but there was no answer;
f)he and Mrs Kanapathy, at a later date, went to the post office and sent the application through registered mail with tracking facility;
g)he kept tracking the mail on-line everyday until 3 November 2010, at which time it was still on hold at the Victoria Park post office, awaiting collection by Ms in de Braekt;
h)the Victoria Park post office is only a few doors away from Ms in de Braekt’s office;
i)on 4 November 2010, he and Mrs Kanapathy went to the Victoria Park post office and explained the situation to the person at the counter;
j)he and Mrs Kanapathy then collected the mail and went to Ms in de Braekt’s office to hand deliver the mail;
k)at this time no one answered the door, so he then rang both of the phone numbers but there was no answer;
l)after about 50 minutes of knocking on the door and ringing the phone numbers, he and Mrs Kanapathy returned the mail to the post office for delivery again;
m)the post office had advised him and he believed that two reminders were sent to Ms in de Braekt (on 4 November and 26 November 2010) advising her of the mail; and
n)as the registered mail was not collected by Ms in de Braekt it was returned to him.
There has been no evidence put forward by Mrs Kanapathy of Ms in de Braekt’s address for correspondence, facsimile or email address, except for paragraph 6 of Mr Kanapathy’s Affidavit which deposes to the fact that Ms in de Braekt works out of offices on Albany Highway in Victoria Park.
In the circumstances, and as deposed to by Mr Kanapathy, the Court is satisfied that there is difficulty in serving Ms in de Braekt. The Court is also satisfied that reasonable steps have been taken to attempt to serve the application on Ms in de Braekt, and that it is impractical to make further attempts in the manners already attempted. It has been demonstrated that difficulty exists in effecting personal service through the attempts that have been made to effect service in accordance with the FMC Rules.[4]
[4] See Ricegrowers Co Operative Ltd v ABC Containerline NV (1996) 138 ALR 480 at 482 per Tamberlin J, in which the Court was considering substituted service pursuant to O 7 r.9 of the Federal Court Rules, which is equivalent to r.6.14 of the FMC Rules.
The Court has, however, been provided with contact information for Ms in de Braekt through the Court Registry. Contact information for Ms in de Braekt has been brought to the attention of the Court Registry by Ms in de Braekt herself. On the Court file there is a facsimile letter from Ms in de Braekt to the Court Registry dated 15 November 2010, indicating that Ms in de Braekt had that day received a copy of the answer to the application of G4S Custodial Services Pty Ltd, the second respondent. Ms in de Braekt then set out various reasons why she said she had not, or might not have, been served with the application, and went on to request that a copy of the application and accompanying documents be forwarded to her by the Court Registry by facsimile, and gave her facsimile number as 9361 8558. That accords with the facsimile number on the facsimile letterhead, which also has an email address of [email protected].
The Court file indicates that a copy of the application was forwarded by the Court Registry to Ms in de Braekt by facsimile on 17 November 2010. Ms in de Braekt then completed a request form requesting a copy of the application, the request form having been forwarded to her by the Registry with the copy of the application. Ms in de Braekt returned the request form to the Court Registry, by facsimile, under cover of a facsimile letter, dated 18 November 2010. In the facsimile letter Ms in de Braekt requested a copy of any orders made by the Court on 12 November 2010, and further said that:
“With respect to any communications or forwarding of documents by/from the Court in respect to this matter, could the Court please only forward documents to me by email preferably, &/or by facsimile. Please do not send any documents by regular post as it is very slow & unreliable in the area of my office.”
Ms in de Braekt went on to indicate that her communication to the Court prior to being served with the application by the applicant was not to be taken as an entrance of appearance before the Court nor a waiver of the requirement for the applicant to serve her with the application.
The Court Registry corresponded with Ms in de Braekt again, on 24 November 2010, this time by email, addressed to the email address on her facsimile letterhead. The Court Registry received an email response from Ms in de Braekt, in which she wrote that:
a)there was no affidavit of service because she had not been served;
b)she had not entered an appearance because she had not been served; and
c)“I trust you will make the respective judicial officer aware of my correspondence.”
The above email from Ms in de Braekt sent on 25 November 2010 was sent from [email protected].
The correspondence from Ms in de Braekt to the Court Registry was, in accordance with Ms in de Braekt’s request, drawn to the Court’s attention prior to the hearing on 13 December 2010. In the circumstances, the Court drew the correspondence to the attention of Counsel for Mrs Kanapathy. In the circumstances disclosed by Ms in de Braekt’s correspondence, Counsel for Mrs Kanapathy orally applied for an order for substituted service on Ms in de Braekt by facsimile and/or email to the facsimile number and email address given by Ms in de Braekt.
It is relevant for the Court to take into account the fact that the likelihood of the alternative means of communication bringing the existence and nature of the documents to Ms in de Braekt’s attention is high, given that the Court Registry has already communicated with Ms in de Braekt through these channels, and she has requested that the Court Registry forward any documents by these means.
The Court is satisfied that there is a reasonable probability or likelihood that the substituted service orders, providing for service of all Court documents filed and all Court orders made to date upon:
a)the facsimile number; and
b)the email address,
provided to the Court Registry by Ms in de Braekt, will result in the documents being brought to Ms in de Braekt’s attention.
The Court has determined that, in all the circumstances, an order for substituted service ought to be made in the form set out in the preceding paragraph.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Lucev FM

Date: 22 December 2010