Polis v Zombor - [2019] FCA 856

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Polis v Zombor

Details

AGLC: Polis v Zombor [2019] FCA 856
Case: [2019] FCA 856
Decision Date: 5 June 2019

CaseChat Overview and Summary

In Polis v Zombor, Henry Peter Polis sought substituted service of an application under Rule 42.11 of the Federal Court Rules 2011 (Cth) to punish Luke Michael Zombor for contempt. The application arose from Zombor's non-compliance with discovery orders. Polis sought to serve the application by leaving it at Zombor's parents' residence, as direct service had been unsuccessful. The court was required to determine whether the proposed method of substituted service would likely bring knowledge of the documents to Zombor and whether leave should be granted under Rule 10.24 for this method.

The court considered the evidence showing that Zombor had not complied with previous orders and had not appeared in the proceedings. The method proposed by Polis was deemed likely to inform Zombor of the proceedings, as his parents resided at the specified address. The court concluded that substituted service was appropriate due to Zombor's non-compliance and lack of appearance. Accordingly, the court granted Polis leave to serve the documents using the proposed substituted service method, specifying the procedure and timeline for service. The matter was listed for a further case management hearing.

The court ordered that Polis could serve the interlocutory application and supporting documents by leaving them at Zombor's parents' residence, with service deemed effective three days after the documents were left. The case was scheduled for a further case management hearing on 28 June 2019, and costs were to be costs in the proceeding.

Orders

Orders of the court

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;

(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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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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