Titan Enterprises (Qld) Pty Ltd v Cross

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FEDERAL COURT OF AUSTRALIA

Titan Enterprises (Qld) Pty Ltd v Cross [2016] FCA 664

File number: QUD 411 of 2016
Judge: EDELMAN J
Date of judgment: 7 June 2016
Catchwords: PRACTICE AND PROCEDURE – substituted service – service by email – where no personal details about respondent’s physical address can be discovered despite exhaustive search – where respondent’s email address is known – whether personal service is “not practicable”
Legislation: Federal Court Rules 2011 (Cth) rr 8.06, 10.01, 10.24
Cases cited:

British American Tobacco Australasia Limited v Taleb (No 1) [2012] FCA 1065

Speedo Holdings BV v Evans [2011] FCA 1089

Statewide Secured Investments Pty Ltd v Tarrant [2011] FCA 1067

Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2007] FCA 124

Electrolux Home Products Pty Ltd v Delap Impex Ltd [2013] FCA 600; (2013) 103 IPR 421

Date of hearing: Determined on the papers
Date of application: 3 June 2016
Registry: Queensland
Division: General Division
National Practice Area: Commercial and Corporations
Sub-area: Regulator and Consumer Protection
Category: Catchwords
Number of paragraphs: 19
Solicitor for the Applicants: Mr A Nicholson of Mullins Lawyers
Counsel for the First Respondent: The First Respondent did not appear
Counsel for the Second Respondent: The Second Respondent did not appear

ORDERS

QUD 411 of 2016
BETWEEN:

TITAN ENTERPRISES (QLD) PTY LTD

First Applicant

RIGEL CONSTRUCTIONS PTY LTD

Second Applicant

RIGEL ERECTORS PTY LTD

Third Applicant

AND:

DALE CROSS

First Respondent

ADAM CLIFFORD HARMON

Second Respondent

JUDGE:

EDELMAN J

DATE OF ORDER:

7 JUNE 2016

THE COURT ORDERS THAT:

1.Until further order, the applicants have leave, pursuant to r 10.24 of the Federal Court Rules 2011 (Cth), to effect personal service of any document in this proceeding on the First Respondent by sending it to him at the email addresses:

(a)dalecrossoz@yahoo.com; and

(b)titancomplaint@bewareoftitangarages.com.

2.Costs reserved.

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


REASONS FOR JUDGMENT

EDELMAN J:

Introduction

  1. This is an application for substituted service by Titan Enterprises and two related companies (which I will refer to collectively as Titan Enterprises) against the first respondent, Mr Cross. Titan Enterprises has brought this proceeding against two respondents, Mr Cross and Dr Harmon (the latter as both a primary wrongdoer and as an accessor or joint tortfeasor). The proceeding concerns a website, described as the “Beware of Titan Garages” website, which Titan Enterprises says is operated by the respondents.

  2. Titan Enterprises alleges that Mr Cross and Dr Harmon have (i) infringed its copyright, (ii) infringed its registered marks, (iii) committed the tort of injurious falsehood, (iv) engaged in misleading or deceptive conduct, and (v) made false or misleading representations. Titan Enterprises seeks various remedies including injunctions, damages, additional damages, exemplary damages, interest, and costs.

  3. Although Titan Enterprises has been in contact with Dr Harmon and his solicitors, it has failed to discover the physical address for service of Mr Cross. Despite apparently exhaustive searches it has only discovered two email addresses for Mr Cross.…

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Details
Case
[2016] FCA 664
Decision Date

CaseChat Overview and Summary

The dispute in Titan Enterprises (Qld) Pty Ltd v Cross involved the respondent's failure to appear in court. The applicant sought to serve the respondent via email because it was impossible to determine his physical address despite extensive efforts. The Federal Court examined whether service by email was justified under the circumstances.

The court had to decide whether the service by email was permissible under the Federal Court Rules when personal service was deemed impracticable. Specifically, the court considered if the lack of physical address information rendered personal service not practicable, thus justifying email service. This necessitated a careful interpretation of Rule 10.24 of the Federal Court Rules, which governs substituted service.

The court found that the evidence supported the conclusion that it was impractical for the applicant to serve any document personally upon the respondent. The court emphasised that the applicant had no realistic means of discovering the respondent's physical location. Consequently, the court ruled that the applicant was permitted to serve documents via email, as stipulated in Rule 10.24 of the Federal Court Rules. The court made an order allowing substituted service by email until further notice.

The court ordered that until further direction, the applicant could serve any document on the respondent via email to the addresses provided. Additionally, the court reserved the issue of costs.

Orders

Orders of the court

1. Until further order, the applicants have leave, pursuant to r 10.24 of the Federal Court Rules 2011 (Cth), to effect personal service of any document in this proceeding on the First Respondent by sending it to him at the email addresses:

(a) dalecrossoz@yahoo.com; and

(b) titancomplaint@bewareoftitangarages.com.

2. Costs reserved.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In this case, the evidence overwhelmingly supports the conclusion that it is impracticable for Titan Enterprises to serve any document personally upon Mr Cross. Titan Enterprises has no realistic way of discovering where Mr Cross is physically located. The appropriate order is that until the Court orders otherwise, Titan Enterprises has leave, pursuant to r 10.24 of the Federal Court Rules, to effect personal service of any document in this proceeding on Mr Cross by sending it to him at the two email addresses which he is known to have used. If Mr Cross appears in this proceeding then it may be appropriate for this order to be revised.Conclusion Orders for substituted service by service upon Mr Cross’ email addresses should be made.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.