SOCIETE Des Produits Nestle SA v Christian

[2014] FCCA 367

FEDERAL CIRCUIT COURT OF AUSTRALIA

SOCIETE DES PRODUITS NESTLE SA & ANOR v CHRISTIAN & ANOR [2014] FCCA 367

Catchwords:
PRACTICE AND PROCEDURE – Application for order dispensing personal service of initiating process – application for order that initiating process is taken to have been served on the basis that the initiating process has been brought to the attention of the first respondent – whether personal service of initiating process on first applicant is impracticable – whether initiating process has been brought to the attention of the first respondent – order dispensing service and order that initiating process is taken to have been served made.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.6.06(1), 6.14
Federal Court Rules 2011 (Cth), rr.10.23, 10.24

Australian Securities and Investments Commission v China Environment Group Ltd [2013] FCA 286
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2007] FCA 124
Ricegrowers Co-Operative Ltd v ABC Containerline NV (1996) 138 ALR 480
Syndicate Mortgage Solutions Pty Ltd v Khaled El-Sayed [2009] NSWSC 207

First Applicant: SOCIETE DES PRODUITS NESTLE SA

Second Applicant: NESTLE AUSTRALIA LTD
(ACN 000 011 316)

First Respondent: JAMES WILLIAM CHRISTIAN

Second Respondent: MARK CHARLES CHRISTIAN

File Number: SYG 3214 of 2013

Judgment of: Judge Manousaridis

Hearing date: 26 February 2014

Date of Last Submission: 26 February 2014

Delivered at: Sydney

Delivered on: 28 February 2014

REPRESENTATION

Counsel for the Applicants: Mr Flynn

Solicitors for the Applicants: Banki Haddock Fiora

No appearance by the Respondents.

ORDERS

1. Pursuant to r.6.14 of the Federal Circuit Court Rules 2001 (Cth) the requirements for personal service of the application filed in these proceedings upon the first respondent is dispensed with.

2. The following documents are taken to have been served on the first respondent by no later than 20 February 2014:

   (a)the application;

   (b)the applicants’ genuine steps statement;

   (c)the affidavit of Alexandria Susanna Barnett sworn on 19 December 2013;

   (d)the affidavit of Tony Cergoski sworn on 19 December 2013;

   (e)the affidavit of Owen Paul Nelson sworn on 19 December 2013;

   (f)the affidavit of Bradley Alexander Pritchard affirmed on 19 December 2013;

   (g)the affidavit of Marina Olsen affirmed on 20 December 2013;

   (h)the affidavit of Margaret Clare Shearer affirmed 13 December 2013;

3. The applicants send to the first respondent a copy of:

   (a)the second affidavit of Marina Olsen affirmed on 25 February 2014;

   (b)the affidavit of Alasdair James Doctor affirmed on 25 February 2014; and

   (c)these orders,

   by email to <[email protected]> by 4pm on 28 February 2014.

4. The applicants send to the first respondent by email to <[email protected]> a copy of:

   (a)the transcript of these proceedings on 26 February 2014; and

   (b)the transcript of these proceedings on 28 February 2014,

   by email to [email protected] by 6pm on 3 March 2014.

5. The first respondent to file and serve a Response by 14 March 2014.

6. The proceedings to be stood over for further directions on 31 March 2014 at 10:15am before Judge Manousaridis.

7. In the event that no Response has been filed by the first respondent by the time of the directions hearing on 31 March 2014, any application for default judgment to be heard on that date.

8. The costs of the application are reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3214 of 2013

SOCIETE DES PRODUITS NESTLE SA

First Applicant

NESTLE AUSTRALIA LTD

(ACN 000 011 316)

Second Applicant

And

JAMES WILLIAM CHRISTIAN

First Respondent

MARK CHARLES CHRISTIAN

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application for two orders under r.6.14 of the Federal Circuit Court Rules 2001 (Cth) (Rules). The first is an order that the requirements of personal service on the first respondent of the application commencing these proceedings be dispensed with. The second is an order that a sealed copy of the application, together with other documents (other documents),[1] shall be taken to have been served on the first respondent on 20 February 2014 because on 20 February 2014 these documents were sent to a particular email address which I will identify later in these reasons.

   [1] The documents are identified in paragraph 2 of the orders.

Rule 6.14 of the Rules

1. Rule 6.14 of the Rules, which is headed “substituted service”, provides as follows:

   (1)If, for any reason, it is impracticable to serve a document in a way required under this Part, the Court may make an order dispensing with service or substituting another way of serving the document.

   (2)The Court may specify the steps to be taken for bringing the document to the attention of the person to be served.

   (3)The Court may specify that the document is to be taken to have been served on the happening of a specified event or at the end of a specified time.

2. This rule provides that the Court may make an order dispensing with service of a document altogether, or may make an order substituting another way of serving a document. The Court may make either of these orders only if “it is impracticable to serve a document in a way required under this Part”. Where this precondition exists, and the Court is minded to make an order substituting another way of serving the document, the Court may, under r.6.14(2) of the Rules, specify the steps to be taken for bringing the document to the attention of the person to be served. Where, on the other hand, the Court is minded to dispense with service of the document, the Court may then specify that the document is to be taken to have been served on the happening of a specified event or at the end of a specified time.

3. Rule 6.14 of the Rules seems to incorporate into one rule that which, in the Federal Court Rules 2011 (Cth) (FC Rules), is contained in two rules. First, there is r.10.23 of the FC Rules which provides that a party may apply for an order that a document is taken to have been served on a person where it is not practicable to serve a document in a way required by the FC Rules, and the party provides evidence that the document has been brought to the party’s attention. Then there is r.10.24 of the FC Rules which deals with substituted service. That rule is in substance the same as r.6.14 of the Rules except r.6.14 includes the words “an order dispensing with service”.

4. Although r.6.14 of the Rules appears to combine the substance of what is provided in r.10.23 and r.10.24 of the FC Rules, r.6.14 does not expressly provide that before the Court can make an order dispensing service of a document, the person applying for the order must adduce evidence to show that the document has come to the attention of the person required to be served. In my opinion, however, it is impossible to read r.6.14 as empowering the Court to dispense with service, particularly of an application initiating proceedings, without at the very least requiring the party who seeks such an order adducing evidence that the document has come to the attention of the person to be served.

5. Accordingly, for the purposes of this application, I will proceed on the basis that, before I can make the orders sought by the applicants, I must be satisfied of two things. First, it is impracticable to serve the first respondent with the application in a way required by Part 6 of the Rules, namely, by personally handing the application to the first respondent (r.6.06(1)). Second, the application has come to the attention of the first respondent.

6. Before I consider the evidence, it will be useful to identify the principles which should guide me in the exercise of the power conferred by r.6.14 of the Rules.

Principles governing exercise of power under r.6.14 of Rules

1. The notion of “not practicable”, for the purposes of r.10.23 of the FC Rules, was considered by Besanko J in Australian Securities and Investments Commission v China Environment Group Ltd.[2] His Honour said that “the ordinary meaning of the word “practicable” includes the concepts of feasibility and capability”,[3] and that the meaning of “not practicable” must be determined “according to the circumstances of the particular proceedings, including the relief sought and the requirement that the litigation be progressed quickly and efficiently”.[4] His Honour also referred to the following passage from the reasons of the judgment of Tamberlin J in Ricegrowers Co-Operative Ltd v ABC Containerline NV:[5]

   The meaning of the expression “practicable” for the purpose of a substituted service application under the corresponding United Kingdom rule was considered by the Court of Appeal in Paragon Group Ltd v Burnell [1991] 2 All ER 388. Lloyd LJ considered that the word “practicable” should be given a wide meaning and that the simple question was whether it was “practicable” to serve by one of the prescribed methods (at 390). The expression “not practicable” is in my view essentially identical in meaning to the term “impractical”. In order to establish impracticality some attempt, at least, should be made to effect service in accordance with the rules, or evidence should be led that it is so obviously futile as not to warrant an attempt at service. In this case, there is no evidence of obvious futility nor has any attempt been made to serve in accordance with the rules.

   [2] [2013] FCA 286

   [3] At [11] referring to Alstom Ltd v Sirakas [2010] NSWSC 669 at [40] where Palmer J said ““Impracticable” does not mean “impossible”: see e.g. Re Conan Doyle’s Will Trusts [1971] Ch 982, at 994; nor does it mean “inconvenient”: see e.g. Syndicate Mortgage Solutions Pty Ltd v El-Sayed [2009] NSWSC 207. Whether personal service is “impracticable” must be decided according to the particular circumstances of the case at the time that the application for substituted service is made . . . .”

   [4] At [12]

   [5] (1996) 138 ALR 480 at page 482

2. In Humane Society International Inc v Kyodo Senpaku Kaisha Ltd Allsop J (as his Honour then was), speaking of this passage, said:[6]

   Whether that gives full breadth to the language of the rule may be open to debate. On one view of the language of the rule, “impractical” may be wide enough to cover circumstances where in the light of the nature of the claim and the circumstances of the applicant and respondent service through the method provided for by following the Rules is not sensible or realistic, even if it is possible or feasible. It is unnecessary to deal with this question here.

   [6] [2007] FCA 124 at [14]

3. The cases to which Besanko J referred in China Environment Group Ltd concerned rules for substituted service, but his Honour found that the discussion in those cases of what constituted “not practicable” also applied to r.10.23 of FC Rules. In my opinion, these principles also elucidate the meaning of the expression “it is impracticable to serve a document” found in r.6.14 of the Rules.

4. To satisfy the Court, therefore, that it is impracticable to serve by hand a document on a person that the rules require be served by hand, it is necessary for the party seeking to so persuade the Court to adduce evidence that tends to establish the following:

   a)a diligent attempt has been made to discover the place or places at which the person may be served by hand the document, but that attempt has not produced reliable information about the place or places at which the person may be handed the document; or

   b)if there is reliable information about the place or places at which the person may be handed the document, diligent attempts have been made to meet that person at that place or places with a view to handing that person the document, but those attempts have proved fruitless.

5. The second matter of which, in my opinion, the Court must be satisfied before it may make an order under r.6.14 of the FC Rules dispensing service is that the document “has been brought to the attention of the person to be served”. In the context of rules for substituted service which have used the same expression, it has been held that this requires the Court to be satisfied that the proposed method of substituted service (or the method of service actually undertaken) is reasonably likely to bring the proceedings to the notice of the person being served.[7]

   [7] Syndicate Mortgage Solutions Pty Ltd v Khaled El-Sayed [2009] NSWSC 207, Brereton J.

Evidence

1. The first applicant is the owner of a number of trade marks each consisting of the name “MUSASHI”. It has authorised the second applicant to use the trade marks in connection with the distribution of a range of supplements, nutritional, dietary and other associated products.

Communications with respondents before proceedings commenced

1. By 18 December 2012, Ms Shearer, a partner of Banki Haddock Fiora (BHF), the solicitors for the applicants, visited a website at (a-sashi webpage) and reviewed products that were being offered on that webpage, and the use of the logo “A-SASHI”. After Ms Shearer unsuccessfully attempted to place an order for products referred to on the webpage, she concluded that the products were not available to be shipped to Australia.

2. On 15 April 2013 Ms Shearer visited the Facebook page for “A-Sashi Vitamins” where she read the words “Australia Online Shop Coming Soon”. That resulted in Ms Shearer sending a letter dated 22 April 2013 to “A-Sashi Vitamins” at “Exchange Tower, 530 Little Collins Street, Melbourne Victoria, 3000”. This was the address listed in the “Contact Us” section of the a-sashi webpage. Ms Shearer sent a copy of the letter to “A-Sashi Vitamins” at “45 Rockerfeller Plaza, 630 Fifth Avenue, 20^th floor, New York, 4070”.

3. In her letter, Ms Shearer, stated that the first applicant was the owner of a number of Australian trade mark registrations for the mark “MUSASHI”, that the first applicant had become aware of the use of “A-SASHI” on the a-sashi webpage and the a-sashi Facebook page, that the “A-SASHI” mark and logo were being used in relation to a range of supplements and therapeutic products, and that this infringed the first applicant’s trade marks and a number of provisions of the Australian Consumer Law. The envelope in which the letter was sent was returned unopened to Ms Shearer. The envelope contained the hand writing “RTS Suite number?”

4. A visit by Ms Shearer to the Facebook page for “A-Sashi Vitamins” on 6 June 2013 revealed the statement “AUSTRALIA & NEW ZEALAND – Next day shipping”. On the same day Ms Shearer arranged for a search to be made of the ASIC National Business Names register for “A-Sashi Vitamins”. That search showed that the name “A-SASHI VITAMINS” was registered, that the owner of the business name was James William Christian, the first respondent in these proceedings, and that the address for service of notices was 13/3 St Georges Rd, Toorak Victoria.

5. Also on 6 June 2013, Ms Shearer placed a call on the number “1300 364 800” which was diverted to an answering machine with a recorded message to the following effect:

   You have reached A-Shashi Vitamins. All our lines are busy at the moment. Please leave a message.

6. On 18 June 2013 Ms Shearer arranged for a “Whois” search of the domain name That revealed that “James Christian” was the registrant of that domain name.

7. On 21 June 2013 Ms Shearer arranged to send a letter to James William Christian at 13/3 St Georges Rd, Toorak Victoria, being the address recorded in the ASIC registry as the address for service of notices on A-Sashi Vitamins. On the same day, a copy of the letter was sent to the email address <[email protected]>. In her letter, Ms Shearer asserted on behalf of the first applicant that A-Sashi Vitamins was infringing, among other things, the first applicant’s trade marks.

8. The envelope in which the letter was sent to 13/3 St Georges Rd, Toorak Victoria was returned unopened and on which there was written “R.T.S Moved”. The copy of the letter that was sent by email, however, elicited an email response from Mark Christian, the second respondent, on 22 June 2013. In his email, which was copied to “James Christian”, Mark Christian said:

   We confirm receipt of attached BHF communication and advise that we will not comply with Nestle demands due to the following

   1.A-Sashi SKUs consist of vitamin tablets (viz. not powders, bars or beverages)

   see A-Sashi website SKUs consist of powders, bars & beverages (viz. not vitamin tablets)

   see Musashi website logo is not a circle and cannot be mistaken for the Musashi logo.

   see attached JPG

   We will continue to develop our online business model for A-Sashi branded vitamin SKUs in Australia, China, Hong Kong, Malaysia, Singapore, Thailand, the UK & USA.

   Over time we will add skin care & cosmetic SKUs to the A-Sashi range however we have no plans to ever include powders, bars or beverages within the A-Sashi portfolio.

   If your client would like us to withdraw A-Sashi from the global market or would like to acquire A-Sashi IP we are open to a commercial offer.

9. Further email exchanges followed between Ms Shearer and Mark Christian until 9 September 2013 when James Christian telephoned Ms Shearer. James Christian followed this up with an email he sent to Ms Shearer on 13 September 2013 in which he stated, among other things, that “we have received legal advice in relation to your client’s demands” and that the “word mark A-Sashi and the A-Sashi logo don’t comprise an infringement of the Musashi registrations under section 120 of the trademarks [sic] Act 1955”.

10. On 18 October 2013 Ms Shearer placed a telephone call on the mobile number noted in an email Mark Christian sent to her on 8 August 2013. The call went to a recorded voice message left by a person who identified himself as “James”. Mark Christian returned the call on the same day. According to Ms Shearer, Mark Christian discussed with her that Mark and James Christian being open to a reasonable offer to change the A-Sashi name. Mark Christian said that “[a] million dollars ought to do it”. On 14 November 2013 Mark Christian sent an email to Ms Shearer stating that “our offer of $1M (for a name change) is withdrawn”.

Attempts to ascertain residential address of respondents before proceedings commenced

1. On 13 December 2013, an employed solicitor of BHF, Ms Olsen, attempted to call Mark Christian by calling the mobile number noted in Mark Christian’s email of 22 June 2013 to Ms Shearer. The country code for that number is that of Thailand. Ms Olsen was unable to leave a message.

2. On the same day, Ms Olsen telephoned the mobile number that was noted as the mobile number of James Christian in the email he sent Ms Shearer on 13 September 2013. That call was answered by a person who confirmed he was James Christian. Ms Olsen said that she was calling on behalf of Ms Shearer and she had some Court documents she wanted to deliver to Mark Christian and to James Christian. She asked James Christian whether he had a residential address for Mark Christian. James Christian said he will have to call back Ms Olsen. James Christian then sent an email on 13 December 2013 to Ms Shearer stating that his father, Mark Christian, was currently in the Unites States of America and will be returning to Asia where he resides permanently.

3. On 17 December 2013 Ms Olsen sent to the email address from which James Christian had sent to Ms Shearer the email of 13 December 2013 a letter in which she referred to her telephone conversation with James Christian on 13 December 2013, requesting that James Christian provide a street address at which court documents could be served, and inquiring whether James Christian would accept service by email. Ms Olsen also sent a similar letter to Mark Christian at two email addresses.

1. Ms Olsen then undertook a number of searches to ascertain the residential addresses of Mark and James Christian. She searched the residential section of the White Pages for “J Christian” and “M Christian” in Sydney and Melbourne. That produced a “Christian” with no initial at 480 St Kilda Road, Melbourne and a “J Christian” in St Kilda. Ms Olsen called the telephone number for “Christian” but was transferred to a recorded message stating that the number was disconnected or unavailable. Ms Olsen also called the number for “J Christian”, but there was no answer.

2. Ms Olsen also arranged a search of the LinkedIn pages for each of Mark and James Christian. Although this produced the LinkedIn pages of each of Mark and James Christian, the pages did not include their addresses. Ms Olsen also undertook searches of the ZoomInfo pages, Google and Facebook but either found no references to Mark or James Christian or, the references she did find contained no details of their addresses.

3. Of significance is another search Ms Olsen carried out, namely, of the website at (WFT website). Ms Olsen was led to search that website by the email address to which James Christian had copied Mark Christian on the email James Christian sent to Ms Shearer on 13 December 2014. That email address is <[email protected]>. The string of letters “wftraders.com” in that email address is the domain name at which the WFT website is located. Pages from the WFT website contain a number of statements including that World Food Traders Ltd (WFT) “is an international processing & trading group dealing in bulk food ingredients & commodities” and that it “operates throughout Asia Pacific, EEC & the USA”. The WFT website lists the addresses of a number of offices, one of which is “Exchange Tower 530 Little Collins Street Melbourne Victoria 3000”. The WFT webpage also contains profiles of officers of WFT. These include Mark Christian, who is described as the chief executive officer, and James Christian, who is described as WFT’s “General Manager”.

Attempts to serve the application

1. The applicants commenced these proceedings on 20 December 2013 by filing an application together with a number of affidavits.

2. On 23 and 24 January 2014 Ms Olsen engaged Trademark Investigation Services to search the electoral rolls for New South Wales and Victoria for Mark Christian and James Christian, but no record of either name was found.

3. On 11 February 2014 Ms Shearer received an email from James Christian in which he stated:

   With relation to an Australian contact number for James Christian please revise your records to reflect the following

   -    As from 11.15am Tuesday February 11 2014 Tel [phone] was disconnected

   -    As from 11.15am Tuesday February 11 2014 the only Australian contact telephone number for James Christian is 1300-300-978

4. On 13 February 2014, Ms Olsen telephoned the number 1300-300-978 and had a conversation with James Christian. According to Ms Olsen, the conversation included an exchange to the following effect:

   MO:It’s Marina Olsen from Banki Haddock Fiora. I was wondering if you could provide an address at which we can serve court documents.

   JC:What’s the purpose of your call?

   MO:I’ve called you before. I’m trying to get an address from you at which I can serve court documents on behalf of Nestle.

   JC:How’s that going for you?

   MO:That’s why I’m calling, to ask for your address.

5. There was no response from James Christian.

6. On 14 February 2014 Ms Olsen attempted to send by email the application and other documents to a number of email addresses, including email addresses from which Mark Christian and James Christian had sent emails to Ms Shearer. All of these attempts failed.

7. On 14 February 2014, Ms Olsen posted the following message on the online contact form on the “Contact” section of the a-sashi webpage:

   To James and Mark Christian

   Nestle has commenced trade mark proceedings against you in the Federal Circuit Court of Australia, which will be heard on 26 February at 9.30am at John Maddison Tower, Goulburn Street, Sydney.

   The Court may make Orders if you fail to attend. It can also hear all issues in the proceedings in your absence.

   Nestle is seeking orders that would prevent your use of the A-SASHI and deceptively similar marks, including that you cancel all A-Sashi Vitamins business and domain names and the Facebook pages, damages for flagrant infringement and its costs.

   The basis of Nestlé’s claim is that your use of the A-SASHI mark and logo infringes its MUSASHI trade marks, as we’ve set out in previous correspondence.

8. After posting the message, the a-sashi webpage displayed a message stating that the message was undeliverable and that the “inquiry failed due to system error”.

9. On the same day, Ms Olsen posted the same message on the online contact form on the “Contact” section of the WFT website. Immediately after posting this message, the WFT webpage displayed the following message:

   Thanks, World Food Traders Ltd will be in touch.

10. Also on 14 February 2014, Ms Shearer received a letter by registered post from James Christian. The letter, which is dated “March 12 2014”, is as follows:

    With relation to an Australia contact number for James Christian please revise your records to reflect the following

    ·    As from 11.15am Tuesday February 11 2014 Tel [phone] was disconnected

    ·    As from 11.15am Tuesday February 11 2014 the only Australian contact telephone number for James Christian is 1300-300-978

    ·    As from Friday February 14 2014 I will depart Australia in order to reside & work permanently again between Asia & the USA

    As indicated I am contactable (internationally) by calling 1300-300-978 from Australia

11. One of the email addresses to which Ms Olsen, on 14 February 2014, attempted to send the application and other documents is <[email protected]>. This is the registrant email address for the domain name As at 17 February 2014, a search of “Whois” showed that the domain name was registered. A search on 20 February 2014, however, showed that was not registered, and that the status of the domain name was updated on 20 February 2014.

12. On 18 February 2014 Ms Olsen requested a “Whois” search of the domain name The results of that search revealed that “James Christian” is listed next to “Admin Name” and “Tech Name”. Next to the words “Admin Email” is the email address “[email protected]”. Next to each of the words “Organisation Address” and “Admin Address” and “Tech Address” there appear the words “131 Womerah avenue darlinghurst NSW AUSTRALIA”.

13. On 20 February 2014, Ms Olsen attempted to send the application and other documents to two email addresses. The attempt failed in relation to one of the addresses. It did not fail, however, in relation to the email address at <[email protected]>. On the same day, and, later, on 24 February 2014, Ms Olsen sent the application and other documents to other email addresses, but these attempts also failed.

14. In addition to attempting to serve the application by email, on 20 February 2014 an attempt was made to serve the application and supporting affidavits at 131 Womerah Avenue Darlinghurst. On that day, a paralegal employed by BHF, Mr Doctor, attended those premises and found no one present. A neighbour said that he or she did not know if James Christian lived there, but said that “a middle-aged guy called Richard lives there, I think he lives alone”. The neighbour did not know whether it was possible James Christian had previously lived at the premises.

15. Attempts were also made to contact James and Mark Christian by telephone. On 14 February 2014, Mr Doctor called three telephone numbers, one of which had been listed on emails Mark Christian had sent, one that was listed on the a-sashi webpage, and one that was listed on the WFT webpage. Mr Doctor was referred to recorded messages stating that it was not possible to reach the number dialled, or the call could not be completed, or that the number has been disconnected.

16. Further, on 21 February 2014 Mr Doctor telephoned the number 1300-300-978. A person answered the call and, and after Mr Doctor identified who he was and said that he was “calling to inform you that Nestle has commenced trade mark infringement proceedings against you and your father”, the person responded “Aw get fucked”, and hung up.

Is it impracticable to serve by hand the application?

1. From the evidence I have set out above, it will be seen that James and Mark Christian communicated with the applicants’ lawyers; in those communications they provided to the applicants’ lawyers details of email addresses and telephone numbers; largely on the basis of that information, the applicants’ lawyers discovered additional information from which they could potentially discover the place or places at which James and Mark Christian could be served; and the applicants’ lawyers used that additional information to attempt to contact James and Mark Christian by telephone, by email, and by personally attending premises Mark and James Christian recorded on public registers were premises from which they conducted business. The applicants’ lawyers also consulted other sources of information from which they could attempt to identify the place or places at which Mark and James Christian could be served. None of these attempts resulted in the applicants’ lawyers being able to personally serve Mark or James Christian with the application filed in this Court.

2. In my opinion, the evidence shows that it is impracticable for the applicants to serve the application by hand on Mark or James Christian. The applicants, through their lawyers, have done all that is reasonably practicable, and more, to attempt to find the place or places at which Mark and James Christian may be personally served with the application, and to attempt to personally serve them at those places. The evidence also shows that Mark and James Christian appear to be intent on not being personally served with any court document. I am inclined, therefore, to dispense with the necessity of requiring the applicants to personally serve James Christian with the application and other documents filed in these proceedings, provided I can be satisfied that the application and other documents have been brought to the attention of James Christian.

Has the application been brought to the attention of James Christian?

1. The applicants submit that, from the fact on 20 February 2014 the application and supporting affidavits have been sent to <[email protected]>, I should be satisfied that these documents have come to the attention of James Christian. I am so satisfied.

2. The evidence shows that Mark and James Christian are involved in at least one business, namely, FWT. From that, it is reasonable to suppose that James (and Mark) Christian had and continue to have the need to regularly use at least one email address for the purposes of that business. And from the fact that the address at <[email protected]> is the only one out of a large number of emails to which Ms Olsen succeeded in sending the application, I infer that <[email protected]> is the email address James Christian regularly has used, at least up to 20 February 2014. From that, I further infer that James Christian read the email Ms Olsen sent to <[email protected]> which attached the application and other documents.

3. There is a further matter to note. As I have construed r.6.14 of the Rules, before the Court can make an order dispensing with service, it must be satisfied that the document has been brought to the attention of the person to be served. Even if so construed, r.6.14 does not require that the document has in fact been served. That being so, there are three other acts which, in my opinion, brought the application, although not the other documents, to the attention of James Christian.

4. The first is the conversation Ms Olsen had with James Christian on 13 February 2014. In that conversation Ms Olsen informed James Christian she wanted his address at which she could serve court documents on behalf of Nestle. In my opinion, that by itself brought to the attention of James Christian the application filed in these proceedings.

5. The second act is the message Ms Olsen posted on 14 February 2014 to the WFT webpage that “Nestle has commenced trade mark proceedings against you in the Federal Circuit Court of Australia, which will be heard on 26 February at 9.30am at John Maddison Tower, Goulburn Street, Sydney”. Given the senior position the WFT webpage represented James Christian occupied with WFT, I find it more probable than not that this message was read by him. I also find James Christian would know that court proceedings are commenced by the filing of a document and that, when he read the statement, he would have understood that Nestle has filed some initiating document with this Court. On these premises, it follows that the application filed in these proceedings has been brought to the attention of James Christian.

6. The third additional and separate act which, in my opinion, brought the application to the attention of James Christian is the telephone conversation Mr Doctor had on 21 February 2014 when he dialled 1300-300-978. Although the person with whom Mr Doctor spoke did not identify himself, that person’s not questioning or denying Mr Doctor’s statement that he was “calling to inform you that Nestle has commenced trade mark infringement proceedings against you and your father” is a basis on which I infer that the person with whom Mr Doctor spoke was James Christian. That inference is reinforced by James Christian’s having previously informed Ms Shearer on 11 February 2014 that “the only Australian contact telephone number for James Christian is 1300-300-978”. If, as I find, the person with whom Mr Doctor had the conversation is James Christian, the statement “Nestle has commenced trade mark infringement proceedings against you and your father” brought the application by which the applicants commenced these proceedings to the attention of James Christian.

Was James Christian present in Australia on 14 February 2014?

1. Counsel brought to my attention the letter Ms Shearer received from James Christian on 11 February 2014 in which he stated that as from 14 February 2014 he would be departing Australia. Counsel submitted I should not accept, on the basis of that letter, that James Christian departed Australia on 14 February 2014.

2. When considered in light of the evidence which I have set out in detail above, I can give no credit to the statement contained in the letter that James Christian would be departing Australia on 14 February 2014. In the absence of any other explanation or evidence, the evidence before me shows that James Christian has conducted himself, and has so arranged his affairs, to make it difficult for the applicants to serve any court documents on him. In the absence of some other explanation or evidence, the letter dated 11 February 2014 can be seen as a further attempt by James Christian to frustrate the applicants’ attempts to personally serve court documents on him.

3. In any event, there is at least one feature of the letter from James Christian that, in my mind, prevents me from relying on it as evidence that James Christian has departed Australia. The letter states that “1300-300-978” is the number on which he is “contactable (internationally)”. In his email of 11 February 2014 to Ms Shearer, however, James Christian stated that the same telephone number was “the only Australian contact telephone number for James Christian”. As the 1300 prefix itself suggests, the number “1300-300-978” is a telephone number that connects the caller to a telephone in Australia.

Conclusions and disposition

1. For these reasons, the applicants are entitled to an order pursuant to r.6.14 of the Rules dispensing service of the application on James Christian. They are also entitled to an order that, by no later than 20 February 2014, James Christian is taken to have been served with the application and the supporting affidavits. I also propose to order that within three business days of the making of orders, the applicants notify James Christian of the orders I propose to make by email to be sent to <[email protected]>.

2. I will reserve the question of costs.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  28 February 2014