Nipps v Featherby - [2023] WASC 493

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   NIPPS -v- FEATHERBY [2023] WASC 493
CORAM:   FORRESTER J
HEARD:   13 DECEMBER 2023
DELIVERED          :   13 DECEMBER 2023
PUBLISHED           :   18 JANUARY 2024
FILE NO/S:   COR 161 of 2023
BETWEEN:   JEREMY JOSEPH NIPPS
Plaintiff
AND
NATHAN JOHN FEATHERBY
First Defendant
SAXON TRAVIS BALL
Second Defendant
MICHAEL RUSSELL DELIU
Third Defendant
MADE SUMARYA
Fourth Defendant
NUEVO ROYALTY LIMITED
Fifth Defendant
MICHAEL GEORGE FREDERICK POVEY
Sixth Defendant
CHARLES DAVID ROSS STRAW
Seventh Defendant

Catchwords:

Practice and procedure - Application for leave to serve an originating process outside Australia and for substituted service of that originating process - Direction as to manner of service under O 10 r 10(1) Rules of the Supreme Court 1971 (WA)

Legislation:

Corporations Act 2001 (Cth)
Rules of Supreme Court 1971 (WA)
Supreme Court (Corporations) (WA) Rules 2004 (WA)

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	R Young SC
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Seventh Defendant	:	No appearance

Solicitors:

Plaintiff	:	Mills Oakley
First Defendant	:	In person
Second Defendant	:	In person
Third Defendant	:	In person
Fourth Defendant	:	In person
Fifth Defendant	:	Hall & Wilcox (Perth)
Sixth Defendant	:	Hall & Wilcox (Perth)
Seventh Defendant	:	Hall & Wilcox (Perth)

Case(s) referred to in decision(s):

Argonaut Partners Pty Ltd v Abyssinian Metals Ltd [2023] WASC 278
Attorney General (WA) v Lashansky [2014] WASC 42
Bombardier Inc v Avwest Aircraft Pty Ltd [2020] WASCA 2
Chappell v Coyle (1985) 2 NSWLR 73
Foxe v Brown (1984) 58 ALR 542
Micon Mining and Construction Products GmbH & Co KG v Macmahon Mining Services Pty Ltd [2022] WASCA 56

FORRESTER J:

(This judgment was delivered extemporaneously on 13 December 2023 and has been edited from the transcript.)

Introduction

This is an application for service of an originating process outside Australia upon two defendants, and for substituted service of that originating process.
The plaintiff is the liquidator of Ochre Group Holdings Pty Ltd (Ochre). He was appointed on 14 October 2020. The two defendants the subject of this application are Nathan John Featherby (the first defendant) and Made Sumarya (the fourth defendant). The first defendant is a former director of Ochre (having ceased to be a director after being declared bankrupt on 12 June 2019), and the fourth defendant is a current director of Ochre.[1]
[1] Affidavit of Jeremy Joseph Nipps sworn 13 October 2023 [13] - [14] (Nipps Affidavit).
By the originating process, the plaintiff seeks an extension of time pursuant to s 588FF(3)(b) of the Corporations Act 2001 (Cth) (the Corporations Act), to commence proceedings under s 588FF(1) of the Act against the defendants in respect of a potential unreasonable director related transaction.
The application has been duly served on the second, third and fifth, sixth and seventh defendants.[2]
[2] Affidavit of James Alexander Raymond sworn 16 November 2023.

Evidence relied upon by the plaintiff

The plaintiff relies upon the following affidavits:
(a)affidavit of Jeremy Joseph Nipps sworn 13 October 2023;
(b)affidavit of James Alexander Raymond sworn 16 November 2023;
(c)affidavit of James Alexander Raymond sworn 27 November 2023;
(d)affidavit of James Alexander Raymond sworn 8 December 2023; and
(e)affidavit of James Alexander Raymond sworn 11 December 2023.

Affidavit of Jeremy Joseph Nipps

In his affidavit supporting the application sworn 13 October 2023, Mr Nipps (the plaintiff) outlines the difficulties he has had in gaining access to the books and records of Ochre, which has protracted the liquidation of Ochre. He deposes as to his conclusion that Ochre's financial records may not have been maintained in accordance with the Act. He also sets out that concerns have been raised about particular transactions entered into by Ochre in the lead up to his appointment.
The plaintiff deposes that, as at January 2021, the first defendant was communicating with him regarding the financial affairs and books and financial records of Ochre.[3]
[3] Nipps Affidavit [25] ‑ [33].
The plaintiff deposes that he believes that the first defendant, after ceasing to be a director of Ochre, continued to be a shadow director or a de facto director of Ochre, as a person who participated in decisions affecting the whole, or a significant part of Ochre, and who had the capacity to significantly affect Ochre's standing, and in accordance with whose instructions or wishes the directors of Ochre were accustomed to act.[4]
[4] Nipps Affidavit [77].
The plaintiff bases his belief on the fact that, between 28 November 2019 and 27 December 2019, the first defendant attended and participated in multiple directors' meetings and carried out various tasks said to have been resolved at those meetings,[5] the fact that the first defendant acted as the conduit of information to the plaintiff,[6] and the involvement of the first defendant in seeking the removal of the plaintiff as liquidator.[7]
[5] Nipps Affidavit [78(a)], (JJN 39).
[6] Nipps Affidavit [78(b)].
[7] Nipps Affidavit [78(c)].
The plaintiff has deposed that his investigations into the business and affairs of Ochre in the lead-up to his appointment have required him 'to forensically examine, piece together and try to understand a web of complicated and substantially uncertain transactions and arrangements entered into by [Ochre]'.[8] This has been in the context of the limited documents provided to him or which he and his firm have been able to obtain from other sources.[9]
[8] Nipps Affidavit [52].
[9] Nipps Affidavit [52].
The plaintiff also deposes that his investigations have revealed that there were a number of transactions in the 12 months or so leading up to his appointment which resulted in a significant proportion of the value and valuable assets being removed from Ochre and its members.[10] He has since directed his attention towards undertaking investigations to identify whether to commence recovery or other related proceedings.[11]
[10] Nipps Affidavit [53(a)].
[11] Nipps Affidavit [53(b)].
One particular transaction of interest took place between around January 2020 and October 2020,[12] but transactions of relevance occurred starting in around 2014. Other transactions also took place in 2020, in which the first defendant was involved, as demonstrated by correspondence between the first defendant and the second, third, and seventh defendants.
[12] Nipps Affidavit [87].
The potential transactions being considered by the plaintiff are outlined in his affidavit at paragraphs [71] to [126]. On the basis of the evidence provided in the affidavit, I am satisfied that the first and fourth defendants are appropriate targets of the plaintiff's investigation at this stage.
The plaintiff commenced examination proceedings in the Federal Court and has received a number of documents and conducted public examinations of a number of people in relation to Ochre's examinable affairs. There remain outstanding examinations for the first and fourth defendants.
The plaintiff also deposes that his conduct in respect of the potential unreasonable director related transaction was delayed by his having to respond to proceedings commenced by the directors of Ochre in March 2023 to require him to admit proofs of debt for the directors, and to convene a meeting of creditors with the aim of replacing him as liquidator. Those proceedings were ultimately dismissed in August and September of 2023.
The plaintiff deposes that he needs to seek legal advice to assist him in identifying any claims he may wish to bring on behalf of Ochre, but that he intends to do that after resolving the outstanding issues of the public examinations of the first and fourth defendants. Only then will he be in a position to make an informed decision as to whether it would be in the best interests of Ochre to commence recovery proceedings under s 588FF(1) of the Act.

Affidavits of James Alexander Raymond

Location of the first defendant

As to the location of the first defendant, the affidavit of James Alexander Raymond sworn on 16 November 2023 sets out the following relevant evidence:
(a)that on 17 April 2023 an attempt at personal service was made on the first defendant at his last known address for service in Western Australia, at which time the process server was informed that the first defendant had been living in South America for five years;[13]
(b)Charles Straw gave evidence on 25 July 2023 in a public examination in the Federal Court of Australia (Federal Court) that the first defendant is presently living in Latin America;[14]
(c)on 26 July 2023, Michael Povey gave evidence in the Federal Court that he thinks the first defendant is residing in Uruguay or Argentina, based on information received from Mr Straw, and the fact that Mr Povey had received phone calls from the first defendant with a South American area code;[15]
(d)on that same date, Mr Povey also gave evidence that the mobile phone number he had stored in his phone for the first defendant was +54 [redacted];[16]
(e)on 27 July 2023, Michael Deliu gave evidence in the Federal Court that he believes that the first defendant is living in South America,[17] that he had spoken to the first defendant by phone on 26 July 2023, and that the mobile phone numbers he had stored in his phone for the first defendant were +54 [redacted] and +59 [redacted]. Mr Deliu stated that he understood the +54 number to be the first defendant's current phone number and the +59 number to be an old number;[18]
(f)on 28 July 2023, Saxon Ball gave evidence in the Federal Court that on 22 or 23 July 2023 he met with the first defendant and that, while he did not know exactly where the first defendant lived, he believed it was somewhere around Argentina.[19] He had a stored phone number for the first defendant of +59 [redacted];[20]
(g)a further witness, Riaan Esterhuizen, signed a statutory declaration on 28 September 2023, in which he declared that he had a telephone number of +54 [redacted] for the first defendant and had spoken to him on that number in about January 2023;[21] and
(h)the country code for Uruguay is +598.[22] The country code for Argentina is +54.[23]
[13] Affidavit of James Alexander Raymond sworn 16 November 2023 [19] - [20].
[14] Affidavit of James Alexander Raymond sworn 16 November 2023 [31(a)].
[15] Affidavit of James Alexander Raymond sworn 16 November 2023 [31(b)].
[16] Affidavit of James Alexander Raymond sworn 16 November 2023 [34(a)].
[17] Affidavit of James Alexander Raymond sworn 16 November 2023 [31(c)].
[18] Affidavit of James Alexander Raymond sworn 16 November 2023 [34(b)].
[19] Affidavit of James Alexander Raymond sworn 16 November 2023 [31(d)].
[20] Affidavit of James Alexander Raymond sworn 16 November 2023 [34(c)(ii)].
[21] Affidavit of James Alexander Raymond sworn 16 November 2023 [40] - [41].
[22] Affidavit of James Alexander Raymond sworn 16 November 2023 [37].
[23] Affidavit of James Alexander Raymond sworn 16 November 2023 [23].
Both Argentina and Uruguay are parties to the Hague Convention.
Mr Raymond also set out a number of email communications he had sent to two email addresses which he believed to be associated with the first defendant, based on the statutory declaration signed by Mr Esterhuizen. Based on the responses, Mr Raymond formed the belief that one of the email addresses was no longer operative, but that one of the email addresses was valid. The latter consistently returned a message stating:[24]
Unavailable July 31 - December 15, apologies for any inconvenience. Please use alternative email.
[24] Affidavit of James Alexander Raymond sworn 16 November 2023 [41], [43] - [50], [54].
Mr Raymond has also sent text messages to the phone numbers in respect of the examination proceedings.[25]
[25] Affidavit of James Alexander Raymond sworn 16 November 2023 [45(d)], [49(c)].
Mr Raymond deposes to the fact that he has not received any indication that his emails to the apparently valid email address had not been delivered. He has not received any read receipts to any emails and the first defendant has not responded to any emails or text messages.[26]
[26] Affidavit of James Alexander Raymond sworn 16 November 2023 [53(a)] - [53(b)], [53(e)].
In his affidavit sworn 8 December 2023, Mr Raymond refers to a statutory declaration sworn by the first defendant on or about 31 March 2022, which states that the first defendant signed the document at 'El Castilla'.[27] 'El Castilla' or 'Castilla' appears to be a town or province in Argentina.[28]
[27] Affidavit of James Alexander Raymond sworn 8 December 2023 [10].
[28] Affidavit of James Alexander Raymond sworn 8 December 2023 [11].
Mr Raymond also deposes that the first defendant's father is a non‑executive director of a company called Xantippe Resources Ltd, which, according to its company overview, holds options on lithium tenements in Northern Argentina.[29] On 15 May 2023, Xantippe announced that a resolution had been carried to issue shares to an entity by the name of Manroy S.A., which is controlled by the first defendant.[30] It is unclear whether the first defendant continues to hold those shares.
[29] Affidavit of James Alexander Raymond sworn 8 December 2023 [12(b)], (JAR-84).
[30] Affidavit of James Alexander Raymond sworn 8 December 2023 [12(c)].
To his affidavit sworn on 11 December 2023, Mr Raymond annexes the Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters.[31] Article 1 states that the Convention shall not apply where the address of the person to be served is not known.
[31] Affidavit of James Alexander Raymond sworn 11 December 2023 (JAR-88).
Finally, Mr Raymond annexed a document setting out Argentina's declarations and reservations in respect of the Hague Convention, in which it is stated that the Argentine Republic opposed the use of methods of transmission in Article 10 (postage of judicial documents or service by various authorities in the State or origin through various authorities in the State of destination).[32]

Location of the fourth defendant

[32] Affidavit of James Alexander Raymond sworn 11 December 2023 (JAR-89).

In his affidavit, Mr Raymond deposes that he believes that the fourth defendant is, or is likely to be, located somewhere in Indonesia or at the Indonesian address identified.[33]
[33] Affidavit of James Alexander Raymond sworn 16 November 2023 [58].
Mr Raymond bases his belief on the fact that the fourth defendant's 'agent authorised in writing' signed a Proof of Debt for the fourth defendant, which gave an address in Denpasar, Bali (Indonesian Address) and an email address.[34] The fourth defendant was born in Denpasar, according to the ASIC Personal Name Extract for him dated 9 November 2021.[35] Further, an ASIC Historical Company Extract for Ochre dated 10 February 2023 also gave the Indonesian Address for the fourth defendant.[36]
[34] Affidavit of James Alexander Raymond sworn 16 November 2023 [60].
[35] Affidavit of James Alexander Raymond sworn 16 November 2023 [62].
[36] Nipps Affidavit (JJN-5).
A second Proof of Debt, this time purportedly signed by the fourth defendant himself, also gave the Indonesian Address as the fourth defendant's address, and the same email address.[37]
[37] Affidavit of James Alexander Raymond sworn 16 November 2023 [66].
An ASIC Personal Name Extract dated 22 March 2023 has the Indonesian Address as the address for the fourth defendant.[38]
[38] Affidavit of James Alexander Raymond sworn 16 November 2023 [67], (JAR-55).
Mr Raymond deposes that the person who described himself as the 'agent authorised in writing' for the fourth defendant, advised Mr Raymond on 16 May 2023 that the fourth defendant is in Indonesia.[39]
[39] Affidavit of James Alexander Raymond sworn 16 November 2023 [75].
Mr Raymond deposes that, while he has sent emails to the email address given by the fourth defendant in the Proofs of Debt, and has received a notification that delivery was 'complete',[40] he has received no response to any emails sent to that address.
[40] Affidavit of James Alexander Raymond sworn 16 November 2023 [80] - [81], [86] - [87], [89].
Indonesia is not a party to the Hague Convention.[41]
[41] Affidavit of James Alexander Raymond sworn 27 November 2023 [7].

The application

The originating process was filed in accordance with r 2.2 of the Supreme Court (Corporations) (WA) Rules 2004 (WA) (Corporations Rules). Unless the court orders otherwise, the Corporations Rules apply to the proceeding.[42] The Rules of the Supreme Court 1971 (WA) (RSC) apply, to the extent that they are relevant and not inconsistent with the Corporations Rules.[43]
[42] Supreme Court (Corporations) (WA) Rules 2004 (WA) r 1.3(1)(a).
[43] Supreme Court (Corporations) (WA) Rules 2004 (WA) r 1.3(2)(a).
The plaintiff commenced these proceedings by filing an originating process, as required by r 2.2(1)(a) of the Corporations Rules.
Service of the originating process and any supporting affidavit is required by r 2.7(1)(a) of the Corporations Rules, which relevantly provides:
(1)As soon as practicable after filing an originating process and, in any case, at least 5 days before the date fixed for hearing, the plaintiff must serve a copy of the originating process and any supporting affidavit on —
(a)each defendant (if any) to the proceeding …
Section 28A(1) of the Acts Interpretation Act 1901 (Cth) provides:
(1)For the purposes of any Act that requires or permits a document to be served on a person, whether the expression 'serve', 'give' or 'send' or any other expression is used, then the document may be served:
(a)on a natural person:
(i)by delivering it to the person personally; or
(ii)by leaving it at, or by sending it by pre‑paid post to, the address of the place of residence or business of the person last known to the person serving the document; or
(b)on a body corporate—by leaving it at, or sending it by pre‑paid post to, the head office, a registered office or a principal office of the body corporate.
Note: The Electronic Transactions Act 1999 deals with giving information in writing by means of an electronic communication.
(2)Nothing in subsection (1):
(a) affects the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorises the service of a document otherwise than as provided in that subsection; or
(b)affects the power of a court to authorise service of a document otherwise than as provided in that subsection.
Accordingly, there is ordinarily no requirement for personal service of an originating process under the Corporations Act.
The application to serve the originating process on the first and fourth defendants out of Australia is made pursuant to O 10 r 7 RSC, there being no provision in the Corporations Rules for such an application.
Order 10 RSC governs service out of the jurisdiction where the proceedings are to be commenced by writ of summons. The operation of O 10 RSC is extended to other forms of originating process by O 10 r 7 RSC, which also provides that O 10 r 1A, r 4 and r 5 apply with any necessary changes.
In deciding that leave to serve the originating process outside Australia is able to be sought after the issue of an originating process under the Corporations Act, I respectfully adopt the reasoning of Lundberg J in Argonaut Partners Pty Ltd v Abyssinian Metals Ltd.[44]
[44] Argonaut Partners Pty Ltd v Abyssinian Metals Ltd [2023] WASC 278 [15].

Order 10 r 1A relevantly states:
(2)A writ served on a person outside Australia, except a writ served on a person in New Zealand under the Trans‑Tasman Proceedings Act 2010 (Commonwealth), has no effect unless -
(a)the Court, under this Order, granted leave to serve the person; and
(b)the person was served -
(i)under rules 9 to 11; or
(ii)under Order 11A and the convention referred to in that Order.
With 'necessary changes', O 10 r 1A requires that, for service to be effective, the court must have granted leave to serve the originating process on the person, and that the person must be served under O 10 rules 9 ‑ 11 or under O 11A and the convention referred to in that Order.

Should leave be granted to serve the first and fourth defendants outside Australia

A grant of leave under O 10 requires that an applicant establish that the action fall within one of the grounds listed in O 10 r 1. In my view, there is a 'good arguable case'[45] that the application to extend the time in which proceedings can be commenced, pursuant to s 588FF(3) of the Corporations Act, is an application to which the first and fourth defendants are a necessary or proper party to an action properly brought against some other person duly served within the jurisdiction, having regard to the matters outlined in the affidavit of the plaintiff to which I have already referred. Accordingly, the plaintiff has established to my satisfaction that the matter falls within O 10 r 1(1)(h).
[45] Bombardier Inc v Avwest Aircraft Pty Ltd [2020] WASCA 2 [16]; Micon Mining and Construction Products GmbH & Co KG v Macmahon Mining Services Pty Ltd [2022] WASCA 56 [39].
Pursuant to O 10 r 4(1) RSC, an application for a grant of leave under O 10 r 1 or r 2 must be supported by an affidavit which states:
(a)that in the deponent's belief, the plaintiff has a good cause of action, and
(b)where, outside Australia, the person to be served is or probably may be.
In his affidavit sworn 16 November 2023, James Alexander Raymond deposes that, in his belief, the plaintiff has a good cause of action for an extension of time to commence proceedings under s 588FF(1) of the Corporations Act in respect of the potential unreasonable director related transaction.[46]
[46] [9(b)].
Mr Raymond has also deposed as to various items of evidence which point to the locations of the first and fourth defendants. Mr Raymond deposes as to the location or at least likely location of the fourth defendant as being Indonesia.
Mr Raymond was initially less clear as to the location of the first defendant. In his affidavit sworn 16 November 2023, Mr Raymond deposes that he believed that the first defendant is, or is likely to be, somewhere in South America.[47] In his affidavit sworn on 8 December 2023, Mr Raymond refers to further information as to the first defendant's location, and deposes as to his belief that the first defendant is, or probably is, located somewhere in Argentina.[48]
[47] Affidavit of James Alexander Raymond sworn 16 November 2023 [14].
[48] Affidavit of James Alexander Raymond sworn 8 December 2023 [12].
Accordingly, the requirements of O 10 r 4 are satisfied.
The court must also be satisfied that it should exercise its discretion to grant leave.[49] The court should not grant leave unless it is positively satisfied it should do so. It should not be so persuaded unless the plaintiff satisfies it that the proceedings would not be subsequently stayed as an abuse of process, summarily struck out, commenced in an inappropriate forum or for some other reason.[50]
[49] Micon Mining and Construction Products GmbH & Co KG v Macmahon Mining Services Pty Ltd [2022] WASCA 56 [61].
[50] Bombardier Inc v Avwest Aircraft Pty Ltd [2020] WASCA 2 [17].
The transactions under investigation primarily relate to mining projects in the Pilbara region of Western Australia. Ochre is registered in, and its registered office is in, Western Australia. The application is to extend the time allowed to the liquidator to commence proceedings pursuant to s 588FF(3) of the Corporations Act.
In my view, Western Australia is an appropriate forum for the proceedings. The application is not weak, or liable to be struck out summarily or stayed as an abuse of process.
The plaintiff has positively satisfied me that it is appropriate to grant leave to serve the first and fourth defendants out of Australia.

Service on the first and fourth defendants

Having granted leave, I must now deal with the requirements of O 10 r 1A.
The Hague Convention does not apply where the address of the person to be served with the document is not known.[51] Further, Indonesia is not a signatory to the Hague Convention. Accordingly, in the case of each of the first and fourth defendants, in order for service outside Australia to be effective, the plaintiff must be granted leave and the relevant defendant must be served under O 10 rules 9 ‑ 11.
[51] Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Article 1.
On the available evidence, there is no realistic means by which the first defendant can be served under O 10 r 9, as his address is unknown. Given that O 10 r 11 relates only to an undertaking to pay the expenses of service, the only means by which the plaintiff can properly serve the first defendant outside Australia is therefore under O 10 r 10.
In his affidavit sworn on 27 November 2023, Mr Raymond deposes that, on the information he has been able to obtain, compliance with O 10 r 9 may result in a delay, with an average of approximately four to six months, depending on the country.
In each case, therefore, the plaintiff seeks to serve the defendant pursuant to O 10 r 10.

Order 10 r 10

O 10 r 10(1) provides that:
(1)Subject to rule 9(9), to the following provisions of this rule and to any direction given by the Court as to the manner in which the writ shall be served or brought to the notice of the person, Order 9 rule 1 and Order 72 rule 4 apply in relation to the service of a writ, notwithstanding it is to be served outside Australia.
Order 9 r 1 is limited to requiring personal service of a writ. The requirement for personal service is only extended to other forms of originating process by O 9 r 5 RSC. It might therefore be argued that the reference only to O 9 r 1 in O 10 r 10(1) means that any other form of originating process need not be served personally under O 10 r 10(1).
Order 10 r 7, in extending the application of O 10 to (among other documents) any originating process, refers only to O 10 r 1A, r 4 and r 5, with any necessary changes, as applying to such service. It does not refer to the application of, or any necessary changes being made to, O 10 r 10.
However, O 10 r 10(1) cannot be read in isolation. The jurisdiction of the court to order service outside Australia is limited to the regime provided for by O 10. Pursuant to O 10 r 1A (with necessary changes), for service to be effective outside Australia, the originating process must be served in accordance with O 10 rules 9 ‑ 11. If service is to occur in accordance with O 10 r 10, common sense requires that 'necessary changes' also be made to that rule in order for it to apply to other forms of originating process.
As such, O 10 r 10(1) would, in this case, provide that, 'subject to any direction given by the Court as to the manner in which the [originating process] shall be served or brought to the notice of the person' an originating process is to be personally served, unless an order for substituted service is made.
In my view, the fact that the Corporations Rules do not provide for service outside Australia means that there is no direct inconsistency between the RSC and the Corporations Rules on the requirement for personal service. Were it otherwise, the Corporations Rules would apply.
Construing the provisions in this way is consistent with the approach favoured by Lundberg J in Argonaut,[52] and, it is appropriate for reasons of judicial comity, as well as the reasons I have outlined, to approach the matter in the same way.
[52] [39] - [40].

Application for substituted service

The plaintiff applies for an order that the first defendant be served by way of substituted service, with service to be effected by emailing the application documents to him at what appears to be a working email address and sending text messages to his last known international mobile phone number, and Australian mobile phone number.
The plaintiff also applies for an order that the fourth defendant be served by way of substituted service, with service to be effected by emailing the application documents to him at what appears to be a working email address.
For the reasons set out above, I am satisfied that, subject to any direction of the court as to the manner in which the originating process is to be served or brought to the notice of the person, personal service of the originating process would otherwise be required.
Order 72 r 4 RSC provides:
(1)Where by these rules personal service of a document is required and it appears to the Court that personal service of such document on a person required to be served is impracticable, the Court may order that the document be served on that person by substituted service.
(2)An application for an order for substituted service shall be supported by an affidavit stating the facts on which the application is founded.
(3)Substituted service pursuant to an order under this rule is effected by taking such steps as the Court directs to bring the document to the notice of the person to be served, and has the same operation as personal service.
I am satisfied, on the basis of the evidence contained in the affidavits of Mr Raymond, as well as the fact that neither the first nor the fourth defendants have responded to a Federal Court summons to appear for examination in relation to the affairs of Ochre, that personal service on either of the first or fourth defendants is impracticable. The location of the first defendant is generally unknown. The fourth defendant has failed to respond to communications on behalf of the plaintiff, and service in accordance with O 10 r 9 is likely to be attended by significant delay.
An application for substituted service also requires consideration as to whether the form of substituted service will bring the document to the notice of the person to be served. In Attorney General (WA) v Lashansky,[53] Edelman J observed of this requirement:
Counsel for the Attorney General made submissions based upon the assumption, derived from cases where the rule in question was not always identical, that the means of substituted service should only be made where the substituted service is likely to bring the document to the respondent or to his or her attention.[54] I proceed, without deciding, on this basis.[55] I note, however, that the words of the sub-rule do not necessarily appear to require any particular degree of likelihood of notice. It is possible that the words 'taking such steps as the Court directs to bring the document to the notice of the person to be served' could be construed as permitting substituted service by a means which, although not futile, involves the best reasonable steps in the circumstances which could be taken to bring notice to the person to be served.
[53] Attorney General (WA) v Lashansky [2014] WASC 42 [13].
[54] Foxe v Brown (1984) 58 ALR 542, 546 - 548.
[55] See also Chappell v Coyle (1985) 2 NSWLR 73, 85 (Yeldham J).
I am satisfied that the method of service proposed as to service of each of the first and fourth defendants is the most likely method of bringing the documents to their attention. However, I have some reservations as to whether it would be likely to bring the documents to their attention. There is no evidence that either the first or fourth defendants have, in recent times, accessed the email addresses in question, or, in the case of the first defendant, the phone numbers.
In Argonaut, when considering the application for substituted service, Lundberg J considered the fact that O 10 r 10(1) is 'subject … to any direction given by the Court as to the manner in which the [originating process] shall be served or brought to the notice of the person'. His Honour observed:[56]
It appears to me, pursuant to this provision, there is broad power in rule 10 by which this court is able to make directions as to the manner in which service is to be effected outside Australia, in circumstances in which neither O 10 r 9 RSC or O 11A RSC apply, and in a manner which would modify the operation of O 9 r 1 RSC (as to personal service) and O 72 r 4 RSC (as to substituted service).
The subrule provides no limiting conditions or criteria as to the exercise of the power to make such directions. Of course, any direction should be exercised in accordance with, and having regard to the case management goals and objects stated in O 1 r 4A RSC (elimination of delays) and O 1 r 4B RSC (positive case flow management, including disposing efficiently of the business of the court), and having regard to the interests of justice.
The only express precondition stated in O 10 r 10 RSC is that which appears in O 10 r 10(2) RSC …
[56] Argonaut Partners Pty Ltd v Abyssinian Metals Ltd [41] - [43].
Lundberg J considered that it was not necessary to make an order for substituted service in that case, saying:[57]
[A]n exercise of the power to give directions under O 10 r 10(1) RSC is not an exercise of a discretion to order substituted service. Rather, what is sought to be done is in the interests of justice to give directions as to the particular manner in which the writ shall be served or brought to the notice of the person in question. That is not to approach the matter from a substituted service perspective, which as counsel for the plaintiff has indicated would typically first require there to be some evidence that personal service is impracticable.
So far as I can see, the operation and effect of O 10 r 10 RSC appears to be free of authority at the moment. However, taking the matter at first principles, it seems to me O 10 r 10(1) RSC vests the court with a broad discretion as to the manner in which service may be directed in a case in which the relevant applicant has otherwise already demonstrated the prerequisites for the grant of leave for the service of process, in this case an originating process, outside Australia. That discretion should be exercised having regard to the objects and goals stated in O 1 r 4A RSC and O 1 r 4B RSC, and having regard to the interests of justice.
[57] Argonaut Partners Pty Ltd v Abyssinian Metals Ltd [51] - [52].
In my respectful view, there can be no other sensible manner in which to give effect to the phrase 'subject … to any direction given by the Court as to the manner in which the writ shall be served or brought to the notice of the person'.
Accordingly, it is appropriate to give directions as to the service of the originating process which enable the first defendant to be served by sending a message to each of the nominated mobile phone numbers and the email address nominated. I also consider it appropriate for a copy of the documents to be left at the first defendant's last known residential address, which is still, on the evidence, the first defendant's mother's address.
It is also appropriate to give directions as to the service of the originating process which enable the fourth defendant to be served by sending an email to the nominated email address, and sending a copy of the documents to the fourth defendant's last named solicitors, having regard to the nomination of Mr Kennedy as the agent authorised in writing by the fourth defendant in relation to the first Proof of Debt.
If I am not correct in determining that directions pursuant to O 10 r 10(1) are an appropriate means to enable alternative service in this case, for the avoidance of doubt, I would have made orders for substituted service pursuant to O 72 r 4 on the basis that the documents are most likely to be brought to the attention of the first defendant and the fourth defendant in the manner proposed.

First defendant

Service upon the first defendant is to be effected by:
(a)sending the following message to phone numbers:
(i)+54 [redacted]
(ii)+61 [redacted]:
Nathan John Featherby take notice that on 13 October 2023, the plaintiff filed with the court an Originating Process (the Originating Process). The matter number for these proceedings is COR 161 of 2023 and it relates to your involvement in the affairs of the company known as Ochre Group Holdings Ltd (In Liquidation) (ACN 008 877 745). Due to the fact that the plaintiff has not served, and has been unable to serve, the Originating Process on you personally, the plaintiff has obtained orders from the Supreme Court of Western Australia directing that the plaintiff is entitled to serve the Originating Process on you by sending you this message, which will have the effect that you have been served with the Originating Process personally. A copy of the Supreme Court Orders, the Originating Process and other documents relevant to the proceedings can be obtained by you emailing and requesting the documents and referring to the matter number for the proceedings. As a result of this message together with the orders of the Supreme Court of Western Australia, you are now deemed to have been personally served with notice of the proceedings. If you do not take action in relation to the proceedings, the plaintiff will make an application to the court to seek relief and your failure to comply with the Rules of the court will be dealt with in the appropriate manner;
(b)sending a letter enclosing a copy of the Originating Process, the Affidavit of Jeremy Joseph Nipps sworn 13 October 2023, the Minute of Proposed Orders and a copy of these Orders to the first defendant's email address: [redacted]; and
(c)leaving a copy of the Originating Process, the Affidavit of Jeremy Joseph Nipps sworn 13 October 2023, the Minute of Proposed Orders and a copy of these Orders at the first defendant's residence: [redacted].

Fourth defendant

Service upon the fourth defendant is to be effected by:
(a)sending a letter enclosing a copy of the Originating Process, the Affidavit of Jeremy Joseph Nipps sworn 13 October 2023, the Minute of Proposed Orders and a copy of these Orders to the fourth defendant's email address: [redacted]; and
(b)sending a letter enclosing a copy of the Originating Process, the Affidavit of Jeremy Joseph Nipps sworn 13 October 2023, the Minute of Proposed Orders and a copy of these Orders to solicitors Kennedy Vinciullo, to the attention of Mr Kennedy.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SI
Associate to the Honourable Justice Forrester
17 JANUARY 2024