Volkswagen Services Australia Pty Ltd v Sam
[2024] FedCFamC2G 637
•17 July 2024
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
On 16 July 2024 I made the following orders in this matter:
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.
These are the reasons referred to in order 4.
APPLICATION BEFORE THE COURT
The substantive application before the Court is an application by which the applicant seeks orders under the National Credit Code in Schedule 1 to the National Consumer Credit Protection Act 2009 (Cth), including an order authorising the applicant to enter residential premises for the purposes of taking possession of a motor vehicle.
The application first came before Judge Kirton for directions on 2 May 2024 and the Order her Honour made on that occasion included a notation that the Court was not satisfied that personal service was effected on the respondent in accordance with rr 6.06(1) and 6.07 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules).
There is no evidence before the Court that any further attempts at personal service have been made since the application was last before the Court on 2 May 2024.
On 12 July 2024 the applicant filed an interim application seeking orders for substituted service and the applicant also written submissions in support of that application. Amongst other things, the applicant seeks an order allowing the applicant to serve the originating application and affidavit in support on the respondent by:
(a)ordinary post to the respondent to his last known address;
(b)emailing the documents to the respondent’s email address; and
(c)leaving the documents affixed to the front gate of the respondent’s address marked to the attention of the respondent.
I heard the application for substituted service on 16 July 2024.
RELEVANT LEGISLATION AND PRINCIPLES
Pursuant to r 6.06(1) of the GFL Rules, service by hand is required for an application starting a proceeding. There are certain exceptions to this requirement set out in r 6.06(2), but none of those exceptions apply in the present case.
Rule 6.07 explains how to effect service by hand on an individual. The rule provides:
(1)A person serving a document by hand on an individual must give a copy of the document to the person to be served.
(2)However, if the person to be served does not take the copy of the document, the person serving it may put it down in the presence of the person to be served and tell the person what it is.
In an appropriate case, the Court may make an order for substituted service. The circumstances in which the Court may make such an order, and the matters the Court may take into account in determining whether to make such an order, are set out in rr 6.14 and 6.15 of the GFL Rules, which provide:
6.14 Substituted service
(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.
6.15 Matters to be taken into account
In making an order for dispensing with service or for substituted service, the Court may have regard to:
(a)whether reasonable steps have been taken to attempt to serve the document; and
(b)whether it is likely that the steps that have been taken have brought the existence and nature of the document to the attention of the person to be served; and
(c)whether the person to be served could become aware of the existence and nature of the document by means of advertising or another means of communication that is reasonably available; and
(d)the likely cost to the party serving the document, the means of that party and the nature of the proceedings; and
(e)any other relevant matter.
In considering whether it is impracticable to serve the originating application by hand, it is relevant to consider whether, at the date on which the application for substituted service is made, the applicant, using reasonable effort, is unable to serve the respondent by hand: see Foxe v Brown (1984) 59 ALJR 186; [1984] HCA 69 at [16].
In 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 (Royal Express), O’Bryan J said at [8]:
The authorities establish that it is not necessary for an applicant for an order for substituted service to prove that personal service was impossible or futile. Conversely, mere inconvenience in effecting personal service will not suffice.
In its written submissions, the applicant referred to the observation of Gibbs J in Re Williams (1968) 13 FLR 10 at 21, where his Honour said:
It is well established that to obtain an order for substituted service it is not enough to show that the debtor is keeping out of the way to avoid service or that for some other cause prompt personal service cannot be effected, but it is also necessary to show that the method of substituted service asked for will in all reasonable probability be effective to bring knowledge of the proceedings to the debtor (see Re Cook [(1946) 13 ABC 245 at 262] and Re Stewart; Ex parte Barrett [(1967) 10 FLR 99]).
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.
I do not accept this submission and, in particular, I do not accept, based on the evidence before the Court, that the respondent cannot reasonably be personally served with the application. It can be seen from the above summary of the evidence relating to service that there has been a single attempt to effect service by hand on the respondent, with that attempt being undertaken in the middle of the day on a weekday. As noted above, no further attempt at service by hand was made after Judge Kirton expressed the view in a notation to the Order made on 2 May 2024 to the effect that the Court was not satisfied that service by hand had been effected in accordance with the GFL Rules. At the hearing, I questioned the applicant’s lawyer about how the Court could be satisfied that it is impracticable to serve the documents on the respondent by hand when there has only been a single attempt to do so. The applicant’s lawyer acknowledged the concerns of the Court. It appears to me that the applicant seeks substituted service in large part to avoid what O’Bryan J referred to in Royal Express as the ‘mere inconvenience in effecting personal service’.
I am not satisfied from the single attempt made by the applicant to serve the respondent by hand that the applicant has taken reasonable steps to attempt service in accordance with the GFL Rules or that the applicant has established it is impracticable to serve the originating application and the affidavit of Mr Long on the respondent by hand. The application for substituted service must fail for that reason. It is appropriate that the applicant serve the documents by hand, or at least make further attempts to do so before seeking orders for substituted service.
For completeness, I also note that I also raised concerns at the hearing with the applicant’s lawyer about whether the evidence before the Court is sufficient for the Court to be satisfied that, if substituted service were to be permitted in the method proposed by the applicant, the documents would come to the attention of the respondent.
I acknowledge that the evidence before the Court appears to show that the respondent provided the respondent’s residential address to the applicant in September 2022. However, there is no evidence before the Court of any steps taken by the applicant to confirm that the respondent continues to reside at the respondent’s residential address. If, following further attempts at service by hand, the applicant continues to be unable to effect service by hand, it may be appropriate, in any subsequent application for substituted service orders, for the applicant to provide evidence of any steps it has taken to confirm that the respondent’s residential address continues to be his address.
More troubling is the absence of any evidence to show that the email address proposed to be used to effect substituted service belongs to and is used by the respondent. I am unable to locate any evidence in the materials before the Court to show that the respondent provided that email address, or any other email address, to the applicant or that the respondent has used that email address, or any other email address, in communications with the applicant. When questioned, the lawyer for the applicant could not direct me to any such evidence. The only evidence before the Court of any email address being used to communicate between the parties is Mr Tunney’s affidavit of service, which shows that Mr Tunney purported to serve the documents on the respondent by sending them to a particular email address. That evidence is insufficient to show that the respondent provided that email address to the applicant or that he uses that email address. I further note that it is different to the email address proposed to be used for substituted service in the application for substituted service.
While these concerns about the evidence relating to the respondent’s residential address and the email address at which the applicant proposes to serve the documents could be addressed by giving the applicant an opportunity to adduce further evidence, in circumstances where I am not satisfied that the applicant has established that it is impracticable to serve the respondent by hand, I consider that the appropriate course is to dismiss the application for substituted service and to require the applicant to serve the originating application and the affidavit of Mr Long by hand. I therefore made orders to that effect.
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.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 17 July 2024
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