Royal Caribbean Cruises Ltd v Reed (No 2)

[2021] FCA 114

FEDERAL COURT OF AUSTRALIA

Royal Caribbean Cruises Ltd v Reed (No 2) [2021] FCA 114

File number:	NSD 1359 of 2020
Judgment of:	STEWART J
Date of judgment:	18 February 2021
Catchwords:	PRACTICE AND PROCEDURE – application for substituted service pursuant to r 10.49 of the Federal Court Rules 2011 (Cth) – where service not successful on a person in a foreign country – where reasonable attempts have been made to effect personal service – where no reasonable explanation why respondents’ foreign lawyers not authorised to accept service – leave granted to serve documents on respondents’ foreign lawyers by email
Legislation:	Federal Court Rules 2011 (Cth) r 10.49
Cases cited:	Royal Caribbean Cruises Ltd v Reed [2021] FCA 51
Division:	General Division
Registry:	New South Wales
National Practice Area:	Admiralty and Maritime
Number of paragraphs:	6
Date of hearing:	Determined on the papers
Solicitor for the Applicants:	HFW Australia

ORDERS

NSD 1359 of 2020

BETWEEN:

ROYAL CARIBBEAN CRUISES LTD

First Applicant

RCL CRUISES T/AS ROYAL CARIBBEAN CRUISES ABN 54 150 263 086

Second Applicant

AND:

PAUL REED

First Respondent

IVY REED

Second Respondent

ORDER MADE BY:	STEWART J
DATE OF ORDER:	18 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The applicants have leave to serve the following documents on the respondents by substituted service by emailing them to the respondents’ lawyers’ email addresses recorded in the applicants’ interlocutory application dated 17 February 2021, namely:

(a)a sealed copy of the Amended Originating Application filed on 2 February 2021 and the Amended Statement of Claim filed on 27 January 2021;

(b)a copy of the orders made on 1 February 2021 giving leave to serve the documents out of the jurisdiction; and

(c)a copy of these orders and the interlocutory application dated 17 February 2021.

2.Upon service in accordance with order 1, the documents so served will be taken to have been served on the respondents.

3.The costs of the applicants’ interlocutory application dated 17 February 2021 are reserved.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STEWART J:

1. On 1 February 2021, I granted leave to the applicants to serve the amended originating application and amended statement of claim on the first and second respondents in the United States of America in accordance with the requirements for service under the laws applicable there.  See Royal Caribbean Cruises Ltd v Reed [2021] FCA 51.

2. The applicants have now adduced evidence of their unsuccessful attempts to serve the documents on the respondents at their place of residence in Rockville, Maryland, USA.  An affidavit by a process server, Vance M Warren Sr, details his many attempts at service in the period 4-12 February 2021.  The many attempts include four attempts, one on each of 8, 9, 10 and 12 February, where it appeared that the respondents were present at their home but they failed to answer Mr Warren’s and Mr Warren’s agent’s knocking on the door.  Mr Warren formed the view that the respondents were attempting to avoid service.

3. In the circumstances, I am satisfied that reasonable attempts have been made to effect personal service of the documents on the respondents and that those attempts have failed.

4. The applicants have also adduced evidence of extensive correspondence by email between their Australian lawyers and their US lawyers who are conducting the proceeding in Florida, on the one hand, with the respondents’ lawyers who are conducting the Florida proceeding on behalf of the respondents, on the other.  The Florida proceeding is the proceeding which is the target of the applicants’ anti-suit injunction in the principal proceeding in this Court.  Although the respondents’ lawyers have replied on inquiry to say that they do not have the respondents’ authority to accept service, the lawyers clearly have the respondents’ authority to otherwise conduct the proceeding.

5. There is no conceivable – at least to me – reasonable explanation why the respondents would not give their US lawyers authority to accept service of process on their behalf, or why they would not answer the knock of the process server.  The most obvious explanation that occurs to me is that the respondents are seeking to avoid service so as to delay the proceeding in this Court and to thereby potentially hinder its prospects.  That is not a reasonable explanation.

6. In any event, I need reach no concluded view on that. The point is that I am confident that if the documents are provided to the respondents’ US lawyers, the lawyers will in turn bring them to the attention of the respondents. In those circumstances, I am content to grant the applicants’ application under r 10.49 of the Federal Court Rules 2011 (Cth) for leave to serve the documents at the email addresses of the respondents’ US lawyers. Those email addresses have been established in the evidence before me. In order to protect the respondents’ lawyers’ privacy in their email addresses, I will avoid listing the email addresses in the orders that I make but will rather refer to the interlocutory application for the identification of the email addresses.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart.

Associate:

Dated:       18 February 2021