Volkswagen Services Australia Pty Ltd v Sam

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Volkswagen Services Australia Pty Ltd v Sam [2024] FedCFamC2G 637

File number: MLG 750 of 2024
Judgment of: JUDGE LADHAMS
Date of judgment: 17 July 2024
Catchwords: PRACTICE AND PROCEDURE – application for substituted service – whether it is impracticable to serve documents by hand – whether the Court can be satisfied that the proposed method of service will result in the documents coming to the attention of the person being served – application for substituted service refused.  
Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 6.06, 6.07, 6.14, 6.15
Cases cited:

Foxe v Brown (1984) 59 ALJR 186; [1984] HCA 69

Gouras v Voitin [2022] FedCFamC2G 992

Re Williams (1968) 13 FLR 10

Royal Express Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) v Huang, in the matter of Royal Express Pty Ltd (No 3) [2021] FCA 611

Division: Division 2 General Federal Law
Number of paragraphs: 29
Date of hearing: 16 July 2024
Place: Melbourne
Counsel for the Applicant: Ms T Dawood
Solicitor for the Applicant: Celtic Legal
Respondent: No appearance by or for the respondent

ORDERS

MLG 750 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

VOLKSWAGEN SERVICES AUSTRALIA PTY LIMITED (ABN 20 097 071 460)

Applicant

AND:

ADAM SAM

Respondent

ORDER MADE BY:

JUDGE LADHAMS

DATE OF ORDER:

16 JULY 2024

THE COURT ORDERS THAT:

1.The interim application filed by the applicant on 12 July 2024, in which the applicant seeks orders for substituted service, is dismissed.

2.The applicant is to serve on the respondent, in accordance with Division 2 of Part 6 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), a copy of the following documents:

a.the application filed on 2 April 2024; and

b.the affidavit of Brendan Long filed on 2 April 2024.

3.The application is listed for a further directions hearing at 9:30am on 11 November 2024 before a Judge of this Court.

4.The Court will publish reasons for the orders made today from Chambers at a later date.

THE COURT NOTES THAT:

A.If the applicant attempts service in compliance with order 2 but is unable to effect service in accordance with the order, it is open to the applicant to bring a further application seeking orders for substituted service.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE LADHAMS:

INTRODUCTION

  1. On 16 July 2024 I made the following orders in this matter:

    1.The interim application filed by…

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Details
Case
[2024] FedCFamC2G 637
Decision Date

CaseChat Overview and Summary

Volkswagen Services Australia Pty Ltd brought an application for substituted service against Sam in the Federal Circuit and Family Court of Australia. The applicant sought permission to serve the originating application and associated documents by means other than personal service by hand. The applicant argued that it had made reasonable attempts to serve the documents by hand but had been unable to do so. The court was required to determine whether the applicant had established that it was impracticable to serve the documents by hand, and whether the proposed method of substituted service would likely result in the documents coming to the attention of the respondent.

The court considered the evidence provided by the applicant, including affidavits of service and an affidavit of Brendan Long. The applicant had attempted to serve the documents by leaving them in the respondent's letterbox and by sending them by ordinary post and email. The court found that these methods did not constitute service by hand under the relevant rules. The court also noted that the proposed method of substituted service needed to be likely to bring the fact of the proceedings to the attention of the respondent. The court was not satisfied that the applicant's attempts to serve the documents were sufficient or that the proposed method of service would achieve this objective. The application for substituted service was therefore refused.

The court made it clear that if the applicant made further attempts to serve the respondent by hand and those attempts were unsuccessful, it remained open to the applicant to bring a further application for substituted service. The court's orders reflected its view of the application filed on 12 July 2024.

Orders

Orders of the court

Full text does not contain this section.

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

The orders that I have made reflect my view of the application for substituted service filed on 12 July 2024. If the applicant makes further attempts to serve the respondent by hand, as required by both the GFL Rules and the orders I have made, and those attempts are unsuccessful, it remains open to the applicant to bring a further application for substituted service. CONCLUSION For these reasons, I considered it appropriate to make the orders that I made at the hearing on 16 July 2024.

Ratio Decidendi

Legal Principle Established

Similar principles have been applied in this Court. While not expressly referred to in r 6.15 of the GFL Rules, the Court may also consider whether the proposed method of service is likely to achieve the object of bringing the fact of the proceedings to the attention of the respondent: Gouras v Voitin [2022] FedCFamC2G 992 at [24].CONSIDERATION OF THE SUBSTITUTED SERVICE APPLICATION There are three affidavits of service in evidence before the Court setting out the steps that the applicant has taken to serve the originating application filed on 2 April 2024 and an affidavit of Brendan Long filed on 2 April 2024 in support of the originating application. In considering this application for substituted service, I have also had regard to Mr Long’s affidavit filed on 2 April 2024. Mr Long’s affidavit of 2 April 2024 annexes a Consumer Loan Contract signed by the respondent on 12 September 2022 which refers to a physical address of the respondent. To protect the respondent’s privacy, I will not disclose that address in this judgment and will instead refer to it as the ‘respondent’s residential address’. The applicant filed an affidavit of service of Elizabeth Francis Wilde on 2 May 2024. It is unclear from Ms Wilde’s affidavit precisely which documents she attempted to serve. The documents are identified, in a section of the relevant form that deals with service of documents in family law proceedings, as ‘Notice of Filing and Hearing/Notice of Filing’. Ms Wilde deposed that she served the documents on 1 May 2024 at 12:20pm at the respondent’s residential address. She deposed that:I attended the given address which was unattended so pursuant to instructions I left a sealed envelope which contained the said documents in Sam Adam’s letterbox. Leaving the documents in the respondent’s letterbox is insufficient to amount to service by hand, taking into account the requirements of r 6.07 of the GFL Rules. The applicant filed an affidavit of service of Brendan Long on 1 May 2024. Mr Long deposed that he is a solicitor employed by the law firm representing the applicant in this proceeding and that on 15 April 2024 a law clerk under his supervision served the respondent with a covering letter, the originating application, and Mr Long’s affidavit filed on 2 April 2024 by way of ordinary post addressed to the respondent’s residential address. The applicant also filed an affidavit of service of Angus Tunney on 1 May 2024. Mr Tunney deposed that he served the originating application and the affidavit of Mr Long by emailing the documents to an email address that was said to be the email address of the respondent on 16 April 2024. Service by ordinary post and service by email are not service by hand for the purposes of r 6.07 of the GFL Rules. Based on the evidence summarised above, the applicant submitted in its written submissions that the respondent resides at the property at the respondent’s residential address, and that the respondent cannot reasonably be personally served with the application.