Sijabat (Trustee), in the matter of Omeros (Bankrupt) v Omeros

[2023] FCA 709

FEDERAL COURT OF AUSTRALIA

Sijabat (Trustee), in the matter of Omeros (Bankrupt) v Omeros
[2023] FCA 709

File number:	NSD 537 of 2023
Judgment of:	KATZMANN J
Date of judgment:	27 June 2023
Catchwords:	PRACTICE AND PROCEDURE – substituted service – whether not practicable to serve a party personally
Legislation:	Federal Court Rules 2011 (Cth)
Cases cited:	Electrolux Home Products Pty Ltd v Delap Imprex Ltd [2013] FCA 600; 103 IPR 421
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	General and Personal Insolvency
Number of paragraphs:	11
Date of hearing:	Determined on the papers
Solicitor for the Applicant	ERA Legal
Solicitor for the First and Fourth Respondents	Results Legal

ORDERS

NSD 537 of 2023

IN THE MATTER OF THE BANKRUPT ESTATE OF HARRY OMEROS (ALSO KNOWN AS HARRIS OMEROS)

BETWEEN:

LOUISA MENG LI SIJABAT IN HER CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF HARRY OMEROS (ALSO KNOWN AS HARRIS OMEROS)

Applicant

AND:

HARRY OMEROS (ALSO KNOWN AS HARRIS OMEROS)

First Respondent

VICKY OMEROS

Second Respondent

PETER LUCAS (and others named in the Schedule)

Third Respondent

ORDER MADE BY:	KATZMANN J
DATE OF ORDER:	27 JUNE 2023

THE COURT ORDERS THAT:

1.Pursuant to r 10.24 and 1.40 of the Federal Court Rules 2011 (Cth), instead of personal service, the applicant may serve the second respondent with copies of the following documents:

(a)the application filed 9 June 2023;

(b)the affidavit of Louisa Sijabat affirmed 8 June 2023 and Exhibit LS-1;

(c)the outline of written submissions in support of the application of 9 June 2023;

(d)the note of oral submissions made on 9 June 2023;

(e)the transcript of the hearing of the application on 9 June 2023;

(f)the orders of 9 June 2023;

(g)the orders of 16 June 2023;

(h)the interlocutory application filed today (interlocutory application);

(i)the affidavit of Blake O’Neill in support of the interlocutory application filed today; and

(j)this order;

by delivering to, and leaving in, the mailbox of the property located at 22 Knightsbridge Parade West, Paradise Point, Queensland, an envelope enclosing a letter in the form annexed to the interlocutory application and a USB containing the documents.

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

REASONS FOR JUDGMENT

KATZMANN J:

1. This proceeding relates to the bankrupt estate of Harry Omeros. The application was filed on 9 June 2023. Declarations are sought that certain property, both real and personal, formerly owned by the bankrupt have vested in the trustee in bankruptcy. There are five respondents, the first is the bankrupt and the second his mother, Vicky Omeros. By r 8.06 of the Federal Court Rules 2011 (Cth), an originating application and all accompanying documents must be served personally on each respondent named in the originating application. Evidently, the trustee has had difficulty effecting personal service on Mrs Omeros. By an interlocutory application filed today, the trustee applies for substituted service under r 10.24. The application is supported by an affidavit of Blake Joel O’Neill, affirmed on 26 June 2023, and an earlier affidavit, sworn by Casey Watkins on 13 June 2023.

2. Rule 10.24 relevantly provides that, if it is not practicable to serve a document in a way required by the Rules, a party may apply to the Court without notice for an order substituting another method of service. By r 1.40 the Court may make an order for substituted service.

3. The evidence enables me to make the following findings.

4. Mrs Omeros currently lives at 22 Knightsbridge Parade West, Paradise Point in Queensland (the Knightsbridge Parade Property). The Knightsbridge Parade Property is a secure residential dwelling. Access can only be obtained via an intercom.

5. On 10 June 2023 Ms Watkins pressed the intercom but received no response, although Mrs Omeros had apparently been seen at the Knightsbridge Parade Property only a short time before Ms Watkins arrived.  Ms Watkins presented at the Knightsbridge Parade Property twice the following day, early in the morning and in the evening, again pressed the intercom and again received no response although it was apparent at least on the first occasion that there were people inside the Property and on the second that the internal lights were on.  Ms Watkins made another attempt to effect service on 12 June 2023 when she saw a woman in the driveway.  The woman identified herself as Mrs Omeros’s daughter and told Ms Watkins that her mother was “away travelling”.

6. On 14 June 2023, another process server attended the Knightsbridge Parade Property but was unable to obtain a response.  Earlier in the day, the process server attended “Omeros Brothers Seafood Restaurant” in Main Beach, Queensland, a restaurant believed to be owned Mrs Omeros and her husband, but did not find Mrs Omeros there either.

7. A further attempt at personal service at the Knightsbridge Parade Property was made on 15 June 2023 but no one could be raised.

8. In these circumstances, Mr O’Neill is of the opinion that service cannot be effected personally on Mrs Omeros.  Noting that the court documents are “voluminous”, he states that they cannot fit into the mailbox at the Knightsbridge Parade Property.  He believes that, if a letter containing a USB to which the relevant court documents are uploaded is placed in the mailbox and a Dropbox link to those documents is also provided, the documents will come to the attention of Mrs Omeros.

9. It is sufficient to meet the condition in r 10.24 that “it is not practicable” for personal service to be effected using the available means or after a number of unsuccessful attempts. “Not practicable” does not mean futile or not possible. See, for example Electrolux Home Products Pty Ltd v Delap Imprex Ltd [2013] FCA 600; 103 IPR 421 at [72]–[81].

10. Based on the evidence, I am satisfied that it is not practicable to serve Mrs Omeros personally, and will make the order for substituted service the trustee seeks.

11. The trustee also sought an order that the need for service of the interlocutory application be dispensed with.  But since an application for substituted service can be made without notice (that is, without being served or otherwise brought to the attention of the relevant party), there is no need for such an order.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Katzmann.

Associate:

Dated:       27 June 2023

SCHEDULE OF PARTIES

NSD 537 of 2023
Respondents
Fourth Respondent:	SAMANTHA OMEROS
Fifth Respondent:	QUEENSLAND POLICE SERVICE