Tax Practitioners Board v Buckland

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FEDERAL COURT OF AUSTRALIA

Tax Practitioners Board v Buckland [2022] FCA 1376  

File number: NTD 18 of 2022
Judgment of: CHARLESWORTH J
Date of judgment: 3 November 2022
Date of publication of reasons: 18 November 2022
Catchwords: PRACTICE AND PROCEDURE – service on a person in a foreign country – whether leave to serve should be granted – whether upon the grant of leave the Court may make an order for substituted service under r 10.24 of the Federal Court Rules 2011 (Cth) – whether necessary to show an unsuccessful attempt to effect personal service
Legislation:

Federal Court of Australia Act 1976 (Cth) ss 21, 31A

Judiciary Act 1903 (Cth) s 39B

Tax Agent Services Act 2009 (Cth) ss 50-5, 50-35, 70-5

Federal Court Rules 2011 (Cth) rr 1.34, 10.24, 10.42, 10.43, 10.49, 13.01

Cases cited: Ford, in the matter of Careers Australia Group Limited (in liq) v Mansfield [2022] FCA 173
Division: General Division
Registry: Northern Territory
National Practice Area: Taxation
Number of paragraphs: 57
Date of hearing: 3 November 2022
Counsel for the Applicant: Mr M Follett
Solicitor for the Applicant: Minter Ellison
Counsel for the Respondent: The Respondent did not appear

ORDERS

NTD 18 of 2022
BETWEEN:

TAX PRACTITIONERS BOARD

Applicant
AND:

ANTHONY DEAN BUCKLAND

Respondent

ORDER MADE BY:

CHARLESWORTH J

DATE OF ORDER:

3 NOVEMBER 2022

THE COURT ORDERS THAT:

1.Pursuant to r 10.42 and r 10.43(2) of the Federal Court Rules 2011 (Cth) (Rules), the applicant has leave to serve on the respondent in the Philippines, in accordance with article 5 of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, done at the Hague on 15 November 1965 (Hague Convention), the following documents (Documents):

(a)the originating application filed on 14 October 2022;

(b)affidavit of Mingma Sherpa affirmed 14 October 2022;

(c)affidavit of Melissa Guise affirmed 11 March 2022;

(d)affidavits of Aaron Cuerden affirmed 11 April 2022 and 5 October 2022;

(e)affidavit of Jennifer Ledingham affirmed 13 April 2022;

(f)affidavit of Alison Hawkins affirmed 27 April 2022;

(g)affidavit of Tom Cavallaro affirmed 26 May 2022;

(h)affidavit of Patrick Anthony Long affirmed 14 October 2022; and

(i)affidavit of Kenis Ling Fung Chu sworn 2 November 2022.

2.Pursuant to r 1.34 of the Rules, any requirement in r 10.49 that there be unsuccessful attempts at service of the Documents in accordance with the Hague Convention (and proof thereof) be dispensed with.

3.Pursuant to r 10.24(a) or alternatively r 10.49(a) of the Rules, the applicant may serve the Documents on the respondent by:

(a)sending an electronic link to download and access the Documents by email addressed to Anthony Dean Buckland at:

(i)tonybuckland2@gmail.com;

(ii)boniolannalisa@gmail.com;

(iii)tonybuckland@mailfence.com;

(iv)apatnaseasons@gmail.com; and

(v)apatnaseasons@protonmail.com; or

(b)sending a copy of the Documents in PDF form as attachments to one or more emails addressed to Anthony Dean Buckland at the email addresses specified in subparagraph (a).

4.The applicant is to serve a copy of these orders on the respondent, and may do so by either of the methods specified…

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Details
Case
[2022] FCA 1376
Decision Date

CaseChat Overview and Summary

The Tax Practitioners Board sought leave to serve the respondent, Anthony Dean Buckland, in the Philippines. The Board's originating application included affidavits from various individuals and a claim for relief, which sought an injunction pending judgment. Buckland, who was residing in the Philippines, was a registered tax practitioner who had been subject to proceedings for professional misconduct. The Federal Circuit and Family Court of Australia considered the Board's application for leave to serve Buckland in the Philippines, in accordance with the Hague Convention, and to dispense with the requirement to attempt personal service. The court was required to determine whether the Board had demonstrated sufficient grounds for leave to serve Buckland outside Australia and whether it could order substituted service without proof of unsuccessful attempts at personal service.

The court found that the Board had shown good prospects of success in its application for an interim injunction pending judgment. The Board had provided evidence that Buckland had engaged in activities that justified the need for such an injunction. The court also considered the need for urgent action due to the risk of harm if the injunction was not granted. The court concluded that the Board had demonstrated a sufficient likelihood of success in its application for the injunction. Furthermore, the court found that it was appropriate to dispense with the requirement for unsuccessful attempts at personal service given the respondent's location and the difficulty in effecting service in the Philippines. The court granted the Board leave to serve Buckland in the Philippines and allowed the application for substituted service, without the need for proof of unsuccessful attempts at personal service.

The Federal Circuit and Family Court of Australia granted the Tax Practitioners Board's application for leave to serve Buckland in the Philippines, in accordance with the Hague Convention. The court also allowed the application for substituted service without the need for proof of unsuccessful attempts at personal service. The court set down a hearing to determine whether a short-term interim injunction should be granted and ordered the Board to serve the respondent and file an affidavit of service. The court's decision allowed the Board to proceed with serving Buckland and pursuing its application for an injunction pending judgment.

Orders

Orders of the court

1. Pursuant to r 10.42 and r 10.43(2) of the Federal Court Rules 2011 (Cth) (Rules), the applicant has leave to serve on the respondent in the Philippines, in accordance with article 5 of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, done at the Hague on 15 November 1965 (Hague Convention), the following documents (Documents):

(a) the originating application filed on 14 October 2022;

(b) affidavit of Mingma Sherpa affirmed 14 October 2022;

(c) affidavit of Melissa Guise affirmed 11 March 2022;

(d) affidavits of Aaron Cuerden affirmed 11 April 2022 and 5 October 2022;

(e) affidavit of Jennifer Ledingham affirmed 13 April 2022;

(f) affidavit of Alison Hawkins affirmed 27 April 2022;

(g) affidavit of Tom Cavallaro affirmed 26 May 2022;

(h) affidavit of Patrick Anthony Long affirmed 14 October 2022; and

(i) affidavit of Kenis Ling Fung Chu sworn 2 November 2022.

2. Pursuant to r 1.34 of the Rules, any requirement in r 10.49 that there be unsuccessful attempts at service of the Documents in accordance with the Hague Convention (and proof thereof) be dispensed with.

3. Pursuant to r 10.24(a) or alternatively r 10.49(a) of the Rules, the applicant may serve the Documents on the respondent by:

(a) sending an electronic link to download and access the Documents by email addressed to Anthony Dean Buckland at:

(i) tonybuckland2@gmail.com;

(ii) boniolannalisa@gmail.com;

(iii) tonybuckland@mailfence.com;

(iv) apatnaseasons@gmail.com; and

(v) apatnaseasons@protonmail.com; or

(b) sending a copy of the Documents in PDF form as attachments to one or more emails addressed to Anthony Dean Buckland at the email addresses specified in subparagraph (a).

4. The applicant is to serve a copy of these orders on the respondent, and may do so by either of the methods specified in paragraph 3.

5. The applicant’s application for an order in terms of paragraph 3 of the claim for relief contained in the originating application dated 14 October 2022, be set down for hearing at 10:00am (ACDT) on 11 November 2022 for the purposes of determining whether there should be a short-term interim injunction granted, pending the hearing of the application for an interlocutory injunction pending judgment.

6. There be a case management hearing at 10.00am (ACDT) on 11 November 2022.

7. Any requirement that there be a return date endorsed on the face of the originating application be dispensed with.

8. The parties have leave to attend at the hearing referred to in paragraphs 5 and 6 by way of web conference.

9. Subject to further order, the matter proceed on affidavits.

10. At or before 5:00pm (ACDT) on 4 November 2022 the applicant is to file an affidavit deposing to service of the Documents in accordance with one or more of the methods specified in paragraph 3 of the orders and to service of these orders in accordance with paragraph 4.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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