Optics Online Pty Limited v Sunland Group Limited

Case [2007] FCA 711

FEDERAL COURT OF AUSTRALIA

Optics Online Pty Limited v Sunland Group Limited [2007] FCA 711

OPTICS ONLINE PTY LIMITED v SUNLAND GROUP LIMITED, PRD REALTY PTY LIMITED, MARKUS BUSKEY, CRESTGATE PTY LIMITED, DEL LA PARKER AND GALACOAST PTY LIMITED
NSD 1622 OF 2006

ALLSOP J
11 MAY 2007
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1622 OF 2006

BETWEEN:

OPTICS ONLINE PTY LIMITED
Applicant

AND:

SUNLAND GROUP LIMITED
First Respondent

PRD REALTY PTY LIMITED
Second Respondent

MARKUS BUSKEY
Third Respondent

CRESTGATE PTY LIMITED
Fourth Respondent

DEL LA PARKER
Fifth Respondent

GALACOAST PTY LIMITED
Sixth Respondent

JUDGE:

ALLSOP J

DATE OF ORDER:

11 MAY 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

Substituted Service

1.Pursuant to Order 7 Rule 9 of the Federal Court Rules personal service of the subpoena on Peter Giuffre be dispensed with.

2.Pursuant to Order 7 Rule 9 of the Federal Court Rules the fourth and fifth respondents be given leave to effect service of the subpoena, filed in the Federal Court on 22 February 2007, on Peter Giuffre by substituting service in accordance with paragraph 3 of these orders.

3.A copy of the subpoena together with a sealed copy of this order be served on Peter Giuffre (in a sealed envelope) by pre-paid registered post addressed to the following address:

(a)     “The Ocean Isles” 3/3507 Main Beach Parade, Main Beach Qld 4217.

4.The subpoena be deemed to be served upon Peter Giuffre upon the expiration of 7 days from the date of the events referred to in paragraph 2 of these orders.

5.Peter Giuffre is to attend to producing the subpoena and documents or things to the Registrar, Federal Court of Australia, Law Courts Building, Queen’s Square, Sydney within 14 days of service.

6.Service in accordance with this order shall be deemed good and sufficient service of the subpoena on Peter Giuffre.

Access to documents produced on subpoena

7.The applicant in the first instance is to have first access for seven days from the date of this order to the documents produced on subpoena by:

(a)      Lynch & Co Solicitors;
(b)      McCullough Robertson Lawyers; and
(c)       Robinson & Robinson Lawyers.

8.Subject to paragraph 7 above and to any claim for privilege made by the applicant, all parties are thereafter to have general access to the documents produced on subpoena by:

(a)      Lynch & Co Solicitors;
(b)      McCullough Robertson Lawyers;
(c)      Robinson & Robinson Lawyers;
(d)      Harcourts Mermaid Beach.

Notice of Motion

9.The first respondent file and serve any notice of motion and serve any affidavit or proposed tender bundle in support of the application by 18 May 2007.

10.The applicant serve any affidavits or proposed tender bundle in response by 25 May 2007.

11.The first respondent’s notice of motion be listed for hearing on 18 June 2007 at 10.15.

12.Relevant parties exchange outline of submissions on or before 13 June 2007.

13.The proceedings are stood over for directions to 18 June 2007 at 10.15 am, subject to any party not interested in participating in the motion is excused from attendance until otherwise notified.

14.Directions hearing on 5 July 2007 is vacated.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1622 OF 2006

BETWEEN:

OPTICS ONLINE PTY LIMITED
Applicant

AND:

SUNLAND GROUP LIMITED
First Respondent

PRD REALTY PTY LIMITED
Second Respondent

MARKUS BUSKEY
Third Respondent

CRESTGATE PTY LIMITED
Fourth Respondent

DEL LA PARKER
Fifth Respondent

GALACOAST PTY LIMITED
Sixth Respondent

JUDGE:

ALLSOP J

DATE:

11 MAY 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. In this matter Carter Newell Lawyers on behalf of the fourth and fifth respondents sought to serve a subpoena on a Mr Peter Giuffre who at some time in the past acted for the applicant as a solicitor.  Mr Giuffre appears to live at a unit complex in Main Beach in Queensland.  An attempt to serve a subpoena which was issued with leave was made upon him on 13 March 2007.  Mr Giuffre would not come down from his unit, which is a security unit, on that day.  He made an offer to communicate by telephone which has not been an offer able to be successfully availed of.

  2. I grant leave to the fourth and fifth respondents to rely upon a copy of an affidavit by Peter William George, licensed process server, sworn on 12 April 2007 which is annexed to correspondence by facsimile to my chambers dated 3 May 2007. 

  3. I required the matter to come to court today.  The parties have also raised another issue in relation to the conduct of the proceeding.  For those reasons they have incorporated into short minutes of order dealing with substituted service orders dealing with access to documents produced on subpoena and also in relation to a notice of motion which the first respondent wishes to bring based on what it says is the inadequacy of the pleading, the provision of particulars and other information provided by the applicant.

  4. For these reasons, I make orders in accordance with the short minutes of order initialled by me dated today and also amended by me and placed with the papers.  In those orders, the directions hearing of 5 July 2007 is vacated and the proceeding is stood over, as is the notice of motion that is to be served, to 18 June 2007 at 10.15 am.  I make one further addition:  the first respondent file and serve any notice of motion and serve any affidavit or proposed tender bundle. 

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:
Dated:       14 May 2007

Counsel for the Applicant:  Mr  J Giles
Solicitor for the Applicant Levitt Robinson
Counsel for the First Respondent:  Mr M Cohen
Solicitor for the First Respondent: Gadens Lawyers
Solicitor for the Second and Third Respondent: Phillips Fox
Solicitor for the Fourth and Fifth Respondent:  Carter Newell
Solicitor for the Sixth Respondent: McCabe Terrill Lawyers
Date of Hearing: 11 May 2007
Date of Judgment: 11 May 2007
Details
AGLC
Optics Online Pty Limited v Sunland Group Limited [2007] FCA 711
Case
[2007] FCA 711
Decision Date

CaseChat Overview and Summary

In the matter of Optics Online Pty Limited v Sunland Group Limited, the Federal Court was tasked with granting permission for substituted service of a subpoena on Peter Giuffre. The applicant, Optics Online, sought to subpoena documents from Giuffre, who was believed to be outside of Australia. The respondents, Sunland Group, Lynch & Co Solicitors, McCullough Robertson Lawyers, Robinson & Robinson Lawyers, and Harcourts Mermaid Beach, were involved in the dispute. The legal issues at hand included whether substituted service was appropriate and whether the applicant should be granted exclusive access to the documents produced on subpoena.

The court determined that substituted service was warranted due to Giuffre's absence from Australia and the unlikelihood of personal service being feasible. The court found that the criteria for substituted service under Order 7 Rule 9 of the Federal Court Rules were satisfied, allowing for service by pre-paid registered post. The court also granted the applicant exclusive access to the documents produced on subpoena for seven days to allow for inspection and preparation of any privilege claims. The court further set timelines for the filing and service of notices of motion and affidavits, and scheduled a directions hearing to manage the proceedings.

The court's orders included dispensing with personal service of the subpoena and allowing substituted service by pre-paid registered post. The subpoena was deemed served upon Giuffre seven days after posting. The applicant was granted exclusive access to the documents produced on subpoena for seven days, followed by general access for all parties. The court also set deadlines for filing and serving notices of motion and affidavits, and scheduled a directions hearing to manage the proceedings.

The final orders provided detailed instructions for substituted service of the subpoena, exclusive and general access to documents produced on subpoena, and timelines for filing and serving notices of motion and affidavits. The directions hearing was scheduled for 18 June 2007, with an exchange of outlines of submissions by 13 June 2007. The court stood over the directions hearing on 5 July 2007, subject to any party not interested in participating in the motion being excused from attendance until otherwise notified.

Orders

Orders of the court

Substituted Service

1. Pursuant to Order 7 Rule 9 of the Federal Court Rules personal service of the subpoena on Peter Giuffre be dispensed with.

2. Pursuant to Order 7 Rule 9 of the Federal Court Rules the fourth and fifth respondents be given leave to effect service of the subpoena, filed in the Federal Court on 22 February 2007, on Peter Giuffre by substituting service in accordance with paragraph 3 of these orders.

3. A copy of the subpoena together with a sealed copy of this order be served on Peter Giuffre (in a sealed envelope) by pre-paid registered post addressed to the following address:

(a) “The Ocean Isles” 3/3507 Main Beach Parade, Main Beach Qld 4217.

4. The subpoena be deemed to be served upon Peter Giuffre upon the expiration of 7 days from the date of the events referred to in paragraph 2 of these orders.

5. Peter Giuffre is to attend to producing the subpoena and documents or things to the Registrar, Federal Court of Australia, Law Courts Building, Queen’s Square, Sydney within 14 days of service.

6. Service in accordance with this order shall be deemed good and sufficient service of the subpoena on Peter Giuffre.

Access to documents produced on subpoena

7. The applicant in the first instance is to have first access for seven days from the date of this order to the documents produced on subpoena by:

(a) Lynch & Co Solicitors;

(b) McCullough Robertson Lawyers; and

(c) Robinson & Robinson Lawyers.

8. Subject to paragraph 7 above and to any claim for privilege made by the applicant, all parties are thereafter to have general access to the documents produced on subpoena by:

(a) Lynch & Co Solicitors;

(b) McCullough Robertson Lawyers;

(c) Robinson & Robinson Lawyers;

(d) Harcourts Mermaid Beach.

Notice of Motion

9. The first respondent file and serve any notice of motion and serve any affidavit or proposed tender bundle in support of the application by 18 May 2007.

10. The applicant serve any affidavits or proposed tender bundle in response by 25 May 2007.

11. The first respondent’s notice of motion be listed for hearing on 18 June 2007 at 10.15.

12. Relevant parties exchange outline of submissions on or before 13 June 2007.

13. The proceedings are stood over for directions to 18 June 2007 at 10.15 am, subject to any party not interested in participating in the motion is excused from attendance until otherwise notified.

14. Directions hearing on 5 July 2007 is vacated.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

ALLSOP J

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Ratio Decidendi

Legal Principle Established

Established by: ALLSOP J

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