Roderick, David James v Telstra Corp Ltd

[1997] FCA 1349

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 80 of 1997

BETWEEN:

DAVID JAMES RODERICK
APPLICANT

AND:

TELSTRA CORPORATION LIMITED
FIRST RESPONDENT

P NEWMAN, F W HILL AND J DUNNING
SECOND RESPONDENTS

JUDGE:

MANSFIELD J

DATE:

20 NOVEMBER 1997

PLACE:

ADELAIDE

REASONS FOR DECISION

HIS HONOUR:   This matter was instituted by an application for review on 9 October 1997.  It was accompanied by a notice of motion.  Neither the merits of the application nor of the notice of motion have yet been considered.  At a directions hearing on 3 November 1997, I gave directions regarding the exchange of affidavits with a view to hearing on 8 December 1997 the notice of motion.  In effect, it seeks an extension of time within which to bring the application for review.  At that time I pointed out to the applicant that the second named respondents, three individuals, were not then before me and that they would have to be served.  I gave liberty to apply.

By oral application today, pursuant to that liberty to apply, the applicant makes two applications.

Firstly, he seeks to join as an additional respondent the Promotions Appeal Board, as it is called.  The Promotions Appeal Board is, to use the words of the applicant, a limb of what was then the Telecommunications Commission under the earlier Telecommunications Act 1975 (Cth).  It is not a statutory entity.  When it was referred to in that legislation, it was given no separate legal existence.  In my view, it is not an entity capable of suing or being sued created by legislation.  It is not suggested that it otherwise has a separate existence in law.  For those reasons, I decline that application.

The applicant, secondly, sought an order for substituted service of the application and associated documents upon Mr Newman and Mr Hill who are two of the three second respondents to the application.  That is because he asserts that they, together with a Mr Dunning, comprised the Promotions Appeal Board at relevant times to his application.  The material before me indicates that attempts to serve those persons by express post were made by sending letters addressed to each of them at care of the Promotions Appeal Board of Telstra in Melbourne.  I am told, although it is not formally proved, that Mr Roderick as the applicant otherwise has difficulty in identifying the addresses of those two persons and therefore has difficulty in serving them.

I am not satisfied that either of those two persons is presently employed by Telstra or that correspondence to Telstra directed to its Promotions Appeal Board, or its successor in function, will necessarily come to their attention.  Mr Roderick proposes to take no other steps in serving those two persons or of bringing these proceedings to their attention.  In my view, it is inappropriate in the circumstances to make an order for substituted service, in effect deeming service to have been effected by the correspondence to which I have referred.  Generally speaking, an order for substituted service in circumstances such as the present should only be made when the Court is satisfied that the proceedings will come to the attention of the persons who are respondents, unless there are special circumstances identified which warrant some different form of consideration.

No such circumstances have been identified to me.  Accordingly, I refuse the application presently made for an order for substituted service upon those two persons upon the basis it is now presented.  Whether there is some other means of serving those two persons, either personally or by a more sophisticated process to achieve the proceedings coming to their attention and, therefore, warranting a fresh application for substituted service, is up to the applicant.

I wish to say one other thing about both those applications.  When the proceedings were instituted and those three persons were named as respondents, I was informed by counsel for Telstra that it was not then clear that Telstra would accept itself responsibility for the actions of those three persons assuming they did constitute the relevant Promotions Appeal Board at material times.  I have now been informed by counsel for Telstra that responsibility for the actions of those three persons on that assumption is accepted.  I have before me an affidavit sworn by Ms Julie McIntyre of 19 November 1997 as solicitor for Telstra in these proceedings par 16 of which reads:

“The decision Mr Roderick complains of appears to be that of the second Review Board.  Accordingly, the First Respondent submits that the Promotions Appeal Board is not an appropriate Board to be joined to the within proceedings and says further that in any event Telstra Corporation Limited is the correct Respondent to these proceedings and that the Promotions Appeal Board, the first Review Board and the second Review Board are entities for which it is responsible.”

The orders which the applicant seeks, if he is entitled to them on the merits, can be made and be effective against the first respondent, Telstra, without the need for any of those persons now being served in the light of the acknowledgment contained in that affidavit.  In my view, having regard to that acknowledgment, it is probably unnecessary now for the applicant to proceed with endeavouring to serve those persons or to seek orders against them, because if he is entitled on the merits to the relief which he seeks it will be effective because the orders will be made against Telstra. 

I hope the applicant understands that because it means that he simply need not bother with the process of involving those three additional persons.  If his claim is meritorious, the Court will be able to make orders against Telstra in respect of their actions and those orders will be effective to achieve the purpose which he seeks to achieve.  For that additional reason, to the extent to which I have a discretion on these applications, I think that provides an additional reason for declining the order sought.

Subject to the parties now complying with the directions which I gave on 3 November 1997 to ensure the notice of motion of 9 October 1997 is ready for hearing on the time fixed, that notice of motion will be heard and determined on 8 December 1997.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.

Associate:

Dated:             3 December 1997

Applicant appears in person
Counsel for the First Respondent:	Mr M J Roder
Solicitors for the First Respondent:	Norman Waterhouse
Date of Hearing:	20 November 1997
Date of Decision:	20 November 1997