Titan Enterprises (Qld) Pty Ltd v Cross

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)[e-mail]; and

(b)[e-mail].

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.…