Polis v Zombor
[2019] FCA 856
•5 June 2019
FEDERAL COURT OF AUSTRALIA
Polis v Zombor [2019] FCA 856
File number(s): VID 217 of 2018 Judge(s): O'BRYAN J Date of judgment: 5 June 2019 Catchwords: PRACTICE AND PROCEDURE – substituted service – whether the proposed method of service will in all reasonable probability be effective to bring knowledge of the documents to the first prospective respondent – whether leave should be granted by the Court pursuant to Rule 10.24 of the Federal Court Rules 2011 for the prospective applicant to serve documents on the first prospective respondent using the proposed method of substituted service Legislation: Federal Court Rules 2011 (Cth) Cases cited: ACCC v Yellow Page Marketing BV [2010] FCA 1218
Porter v Freudenberg [1915] 1 KB 857
Date of hearing: 5 June 2019 Registry: Victoria Division: General Division National Practice Area: Commercial Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Category: Catchwords Number of paragraphs: 15 Counsel for the Prospective Applicant: Mr S T Lane Solicitor for the Prospective Applicant: Enyo Lawyers Counsel for the Prospective Respondents: The First, Second and Third Prospective Respondents did not appear ORDERS
VID 217 of 2018 BETWEEN: HENRY PETER POLIS
Prospective Applicant
AND: LUKE MICHAEL ZOMBOR
First Prospective Respondent
LMZ PROJECTS PTY LTD ACN 603 180 016
Second Prospective Respondent
LATRME PTY LTD ACN 603 176 996
Third Prospective Respondent
JUDGE:
O'BRYAN J
DATE OF ORDER:
5 JUNE 2019
THE COURT ORDERS THAT:
1.Pursuant to Rule 10.24 of the Federal Court Rules 2011 (Cth) (Rules), the Prospective Applicant is granted leave to serve copies of the following documents on the First Prospective Respondent by the methods of service described in Order 2 in substitution for the requirement to serve the documents in accordance with the Rules:
(a)the interlocutory application filed 21 May 2019;
(b)the affidavit of Dean Nicholas Alexander filed 21 May 2019;
(c)the affidavit of Henry Peter Polis filed 21 May 2019;
(d)the affidavit of Clarrie Swan filed 21 May 2019;
(e)the Statement of Charge filed 21 May 2019; and
(f)this order.
The documents in (a) to (f) above are to be served together with a letter which advises the First Prospective Respondent that an order for substituted service has been made and that the proceeding is listed for a case management hearing at 9.30am on 28 June 2019.
2.The following method of service is to be utilised:
(a)leaving the documents in an A4 sized envelope marked to the attention of the First Prospective Respondent, with a person who is apparently over the age of 16 and residing at the address 19 Zebrafinch Court, Carrum Downs VIC 3201.
3.Service is taken to have been effected on the First Prospective Respondent three days after satisfaction of the method of service listed above.
4.The matter be listed for a further case management hearing at 9.30am on 28 June 2019.
5.Costs be costs in the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’BRYAN J:
At an interlocutory hearing today, the prospective applicant, Henry Peter Polis, sought orders for substituted service of an application under Rule 42.11 of Federal Court Rules 2011 (Cth) seeking to punish the first prospective respondent, Luke Michael Zombor, for contempt. I made the orders sought by Mr Polis for the following reasons.
Background
By originating process filed on 27 February 2018, Mr Polis sought orders for discovery from Mr Zombor under Rule 7.23 of the Federal Court Rules 2011 (Cth).
On 26 April 2018, Justice Murphy made orders pursuant to Rule 10.24 for substituted service of that process on Mr Zombor. One of the methods of substituted service was leaving the documents marked to the attention of Mr Zombor with a person who is apparently over the age of 16 and residing at the address 19 Zebrafinch Court, Carrum Downs in Victoria. The evidence showed that Mr Zombor’s parents resided at that address.
Mr Zombor did not appear at the case management hearings in the proceeding and has not taken any step in the proceeding.
On 5 February 2019, Justice Murphy made the orders for discovery from Mr Zombor that had been sought by Mr Polis. His Honour also ordered that the orders for discovery be served on Mr Zombor by methods that included service at the Carrum Downs address. The orders contained an endorsement pursuant to Rule 41.06 informing Mr Zombor, as the first prospective respondent, that he will be liable to imprisonment, sequestration of property or punishment for contempt if he neglects or refuses to do what was required by the order. Justice Murphy’s reasons for making those orders are published at [2019] FCA 69.
The evidence before me establishes that the orders for discovery made on 5 February 2019 were served by Mr Polis on Mr Zombor by the methods of substituted service specified in the orders, including by service at the Carrum Downs address. The evidence also establishes that Mr Zombor has not complied with the orders for discovery.
Application for substituted service
On 22 May 2019, Mr Polis filed the present interlocutory application under Rule 42.11 seeking a declaration that Mr Zombor is guilty of contempt, and an order that he be fined in respect of the contempt, relating to his non-compliance with the orders for discovery made on 5 February 2019.
Mr Polis also sought orders that, as a first step, personal service of that interlocutory application, affidavits in support and orders of the Court be substituted with service at the Carrum Downs address. That application stated that it would be heard at 9.30am today.
Between 27 and 29 May 2019, Mr Polis served the interlocutory application and supporting affidavits on Mr Zombor using the methods of substituted service the subject of the orders made on 5 February 2019. Mr Zombor did not appear at the interlocutory hearing today. I heard the application by Mr Polis for substituted service ex parte.
Rule 10.24 provides as follows:
If it is not practicable to serve a document on a person in a way required by these Rules, a party may apply to the Court without notice for an order:
(a) substituting another method of service; or
(b)specifying that, instead of being served, certain steps be taken to bring the document to the attention of the person; or
(c) specifying that the document is taken to have been served:
(i) on the happening of a specified event; or
(ii) at the end of specified time.
The evidence filed in the applications heard by Justice Murphy established that it was not practicable to serve Mr Zombor personally. The evidence outlined the efforts that had been taken to locate Mr Zombor, which had all been unsuccessful. In his Honour’s judgment on 5 February 2019, Justice Murphy found that (at [9]):
Mr Polis was unable to effect personal service of the originating application and affidavit in support on Mr Zombor. In support of an application for substituted service he filed evidence to the following effect:
(a)service of the originating application and supporting affidavit had been attempted by an investigator at various addresses identified in searches of electoral, property, company and other public records;
(b)a Facebook page under the name “Luke Zee” existed to which had been uploaded a photograph of Mr Zombor;
(c)the “Luke Zee” account holder responded to a Facebook message and said that Mr Zombor was in Bangkok at the time but would be home by the weekend of 16 December 2017, that he would be using his parents’ home of 19 Zebrafinch Court, Carrum Downs, Victoria as his base location, and that correspondence could be sent to that address;
(d)the property at that address is jointly owned by Mr Bela Zombor and Mrs Janet Zombor; and
(e)that an ABN held in the name of Luke Michael Zombor and trading as Freedom Mortgages, is owned by Mr Zombor and its registered address is 19 Zebrafinch Court, Carrum Downs, Victoria.
I am satisfied that that remains the case.
The method of substituted service sought by an applicant should be one which in all reasonable probability, if not certainty, will be effective to bring knowledge of the process to the respondent: Porter v Freudenberg [1915] 1 KB 857 at [889]; ACCC v Yellow Page Marketing BV [2010] FCA 1218 at [35].
There is conflict in the evidence as to whether Mr Zombor is residing at, or regularly visits, the Carrum Downs residence. On two occasions on which a process server attended the Carrum Downs residence, the first on 8 March 2018 and the second on 27 May 2019, a woman who identified herself as Mr Zombor’s mother stated that her son, Mr Zombor, had not resided at the Carrum Downs residence for 15 or 20 years and she did not have any of his forwarding or contact details. However, other evidence suggests that Mr Zombor either has resided at the residence in recent times or visits regularly. That evidence includes the matters referred to by Justice Murphy, set out above. It also includes evidence of a process server who attended the residence on 6 February 2019 and spoke to a male person, who declined to provide his name, but who was apparently over the age of 16. The following conversation ensued:
Are you Luke Michael Zombor? The male replied no.
Do you live here with Luke Michael Zombor? The male replied yes.
Will you ensure these documents are passed on to Luke Michael Zombor? The male replied yes.
On the basis of the evidence referred to by Justice Murphy, and the evidence of the process server in the preceding paragraph, I am satisfied that, in all reasonable probability, the proposed method of service will be effective to bring knowledge of the papers to Mr Zombor. I therefore make the orders sought by Mr Polis.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Bryan. Associate:
Dated: 5 June 2019
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