FEDERAL COURT OF AUSTRALIA Dickson, in the matter of Centaur Litigation SPC (in liq) v Centaur Litigation SPC (in liq) (No 2) [2016] FCA 598 File number: NSD 114 of 2016 Judge: YATES J Date of judgment: 25 May 2016 Catchwords: PRACTICE AND PROCEDURE – substituted service – application for – considerations – whether personal service not practicable – where previous attempts to effect personal service were unsuccessful – whether attempts were reasonable – whether proposed means of service will bring the documents to the attention of the person Legislation: Federal Court Rules 2011 r 10.24 Federal Court (Corporations) Rules 2000 rr 1.3, 11.4 Cases cited: Dickson, in the matter of Centaur Litigation SPC (in liq) v Centaur Litigation SPC (in liq) [2016] FCA 585 Date of hearing: 25 May 2016 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 24 Counsel for the Plaintiffs: Mr AG Bell SC with Mr S Aspinall Solicitor for the Plaintiffs: Henry Davis York ORDERS NSD 114 of 2016 IN THE MATTER OF CENTAUR LITIGATION SPC, CENTAUR LITIGATION LTD AND CENTAUR LITIGATION UNIT SERIES 1 LTD (EACH IN LIQUIDATION) (EACH A COMPANY REGISTERED IN THE CAYMAN ISLANDS) BETWEEN: HUGH DICKSON AS FOREIGN REPRESENTATIVE OF CENTAUR LITIGATION SPC, CENTAUR LITIGATION LTD AND CENTAUR LITIGATION UNIT SERIES 1 LTD (EACH IN LIQUIDATION) (EACH A COMPANY REGISTERED IN THE CAYMAN ISLANDS) (and others named in the Schedule) First Plaintiff AND: CENTAUR LITIGATION SPC (IN LIQUIDATION) (A COMPANY REGISTERED IN THE CAYMAN ISLANDS) (and others named in the Schedule) Second Defendant JUDGE: YATES J DATE OF ORDER: 25 MAY 2016 THE COURT NOTES THAT: 1. The plaintiffs, by their counsel, give the usual undertaking as to damages. THE COURT ORDERS THAT: 2. Leave be granted to the plaintiffs to amend by hand the summons for examination issued 23 May 2016 to Scott Campbell Fisher (also known as Scott Williams) (the examinee) to substitute a return date of 10.15 am on 1 June 2016 for the date 9 am on 25 May 2016 presently shown in the summons. 3. Service of the orders made on 23 May 2016; the interlocutory process filed 23 May 2016; the summons for examination as amended; the order for production issued 23 May 2016 directed to the examinee; the affidavit of Said Jahani in support of additional relief sworn 23 May 2016; and these orders (together, the documents) be effected by the following means, all of which are to be undertaken on or before 5 pm on 26 May 2016: (a) by handing the documents to any person apparently over the age of 16 years who is an occupant of the following premises: (i) Unit 902, 1 Pottinger Street, Millers Point NSW 2000; (ii) Unit 602, 1 Pottinger Street, Millers Point NSW 2000; (iii) 34/21 Sutherland Street, Cremorne NSW; (iv) Unit 5, 20-22 Portland Crescent, Maroubra NSW 2035; and (v) Bedford CA Pty Limited, 141 Walker Street, North Sydney NSW 2860, or if this is not possible, by leaving the documents in a sealed envelope addressed to the examinee in the letterbox at the premises or affixing to the front door or other prominent place at the premises the sealed envelope containing the documents; (b) by scanning and sending copies of the documents to the examinee at: (i) scott@blueedgecapital.com.au; (ii) scott@blueedgeaustralia.com.au; (iii) infoasia45@yahoo.com; and (iv) trent@blueedgeaustralia.com.au; (c) by making the documents available on the internet by accessing a hyperlink to be created and identified in the message referred to in subparagraph (d) below; and (d) by sending a text (sms) message to the examinee on the mobile telephone number 0420 751 415, in the following terms: "To Scott Campbell Fisher, also known as Trent Scott Wallace Strong and Scott Williams: Pursuant to orders made by the Federal Court of Australia on 23 and 25 May 2016, you are presently prohibited from leaving Australia and are ordered to attend for examination at the Federal Court of Australia, Queens Square, Sydney before a Registrar of the Court at 10.15 am on 1 June 2016. Copies of the orders and other relevant documents can be accessed at [the internet address of the site referred to in order 3(c) above]. If you do not attend you may be liable to a penalty and/or a warrant may be sought for your arrest. Noel McCoy, solicitor, Henry Davis York, 44 Martin Place, Sydney NSW 2000. Ph: 02 9947 6234." 4. Service in accordance with these orders shall be deemed good and sufficient service of the documents upon the examinee. 5. On or before 4 pm on 27 May 2016, the plaintiffs file an affidavit or affidavits deposing to service of the documents as required by Order 3. 6. Until 5 pm on 1 June 2016, the examinee be prohibited from leaving Australia. 7. The examination summons be returnable before a Registrar of the Court at 10.15 am on 1 June 2016. 8. The interlocutory process be returnable for mention before the Commercial and Corporations Duty Judge at 9.30 am on 1 June 2016. 9. Liberty to apply be granted to the plaintiffs and the examinee on 2 hours' written notice. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) YATES J: 1 This is an application for substituted service. It is made in the following circumstances. 2 On 23 May 2016, I made orders that an examination summons and an order for production (the relevant documents) issue to Scott Campbell Fisher, also known as Trent Scott Wallace Strong and Scott Williams (the examinee). I also abridged time for service and made an order prohibiting the examinee from leaving Australia based on persuasive evidence that the examinee posed a flight risk: Dickson, in the matter of Centaur Litigation SPC (in liq) v Centaur Litigation SPC (in liq) [2016] FCA 585. BACKGROUND AND EVIDENCE 3 Documents produced by the Department of Immigration and Border Protection (the Department) show that the examinee has frequently entered and left Australia. He has done so using the name Scott Campbell Fisher. Whether other names have been used is not clear. The examinee's passenger cards give his contact details in Australia. The latest record of his movements shows that the examinee entered Australia on 14 January 2016 from Thailand, as a resident returning to Australia. The examinee gave, as he was required to do, a contact telephone number (the contact telephone number) and an intended address in Australia (the contact address). 4 The evidence shows that the same contact telephone number and the contact address were also given by the examinee when entering Australia on 19 November 2015 and 28 December 2015. On earlier occasions, other addresses were given. One address consistently used by the examinee from July 2012 has the same street address as the contact address, although it designates a different apartment number (the related address). 5 On the evening of 23 May 2016, attempts were made to serve the examinee with the relevant documents at the contact address and the related address. These attempts were unsuccessful. Further attempts at service were made throughout 24 May 2016. 6 On 24 May 2016, the plaintiffs' solicitors made contact with the managing agent of the apartment at the contact address. Amongst other things, the plaintiffs' solicitors sought confirmation that the examinee was residing at the contact address. They also sought "any contact details" for the examinee. 7 In a telephone conversation between Oliver Perrottet, a solicitor employed by the plaintiffs' solicitors, and Tasman Fallshaw, a representative of the managing agent, Mr Fallshaw said: I am not going to provide the information because I got in trouble once before when I gave documents to the Australian Federal Police and was threatened with a lawsuit. I have instructed my colleague, Veronica Morgan, to make inquiries with NSW Fair Trading and the Real Estate Institute of NSW to find out if it's okay to give you that information. 8 In a subsequent telephone conversation that day, Mr Fallshaw informed Mr Perrottet as follows: He [referring to the examinee] didn't leave any forwarding address and I don't know where he is. We don't know anything about where he is. There is no point sending your orders as we don't know anything. 9 In the course of that conversation, Mr Fallshaw informed Mr Perrottet that the examinee had moved from the contact address "two or three days ago" and that the examinee's lease of the premises at the contact address would end this Friday, 27 May 2016. 10 There is a significant body of evidence before the Court that Murray Dickson Rose provides services to the examinee and companies associated with the examinee. Mr Rose is a certified public accountant and tax adviser. He is a principal in the firm known as Bedford CA Pty Limited (Bedford CA). 11 In answer to an order for production, Mr Rose provided contact details for the examinee as at 3 May 2016. These contact details include the street address of the contact address, although not the apartment number, and the contact telephone number. The contact details provided by Mr Rose include certain other telephone numbers and certain email addresses. 12 In the course of evidence, I have been taken to a number of documents which show communications between the examinee and Bedford CA (in particular, Patrick Christopher Cole, a client manager at Bedford CA) using these email addresses in recent times. The evidence points persuasively to these email addresses being the principal means by which the examinee communicates with Bedford CA and gives instructions to Mr Cole to perform certain work in relation to companies apparently associated with the examinee. 13 I refer in particular to the company called Blue Edge Capital Australia Pty Limited (Blue Edge). A company search conducted on 23 May 2016 shows that the examinee is the director and secretary of Blue Edge and that Mr Cole is the sole shareholder. The search discloses that the examinee was appointed as the director and secretary on 18 September 2015. The correspondence in evidence before me shows that Blue Edge is currently operating. 14 On 24 May 2016, Noel McCoy, a solicitor employed by the plaintiffs' solicitors, had a telephone conversation with Mr Cole. Mr Cole told Mr McCoy that the examinee had telephoned Mr Cole "five days ago" using the contact telephone number. When pressed for the examinee's present whereabouts, Mr Cole claimed "client privilege" and declined to provide further information. APPLICABLE LAW 15 Rule 11.4 of the Federal Court (Corporations) Rules 2000 (the Corporations Rules) provides that an examination summons issued by the Court must be served personally or served in any other manner as the Court may direct on the person who is to be examined at least eight days before the date fixed for the examination. 16 I have already abridged the time for service of the examination summons. 17 The plaintiffs now seek a direction from the Court as to an alternative means of service on the examinee, given the failed attempts to serve him personally at his last known address (that is, the contact address) and given the fact that, despite their further inquiries, the plaintiffs have been unable to obtain a new address for the examinee or other contact details beyond those already made available to them through their investigations to date. 18 Alternatively, the plaintiffs rely on r 10.24 of the Federal Court Rules 2011 which, by operation of r 1.3(2) of the Corporations Rules, provides for substituted service. CONSIDERATION 19 I am satisfied on the evidence that an order directing alternative or substituted service should be made. I am satisfied on the evidence that personal service on the examinee is not practicable. As I have noted, attempts at personal service have been made and they have proved fruitless. I am satisfied that those attempts have been reasonable. 20 The plaintiffs propose that service be effected by: handing the relevant documents to a person apparently over the age of 16 years who is the occupant at certain addresses or leaving the documents at those addresses; scanning and sending copies of the documents by email to certain email addresses, being addresses provided by Mr Rose in answer to the order for production addressed to him or otherwise known to the plaintiffs as email addresses associated with the examinee based on their investigations to date; making the relevant documents available on the Internet by access to a hyperlink to be established; and sending a text message to the contact telephone number. 21 I am satisfied that service as proposed will, in all reasonable probability, be effective to bring knowledge of the relevant documents to the examinee. In this connection, I note that five street addresses are proposed as the place where the relevant documents will be handed over or left. Two of those addresses are the contact address and the related address. Another address is one that has relatively recently been given by the examinee as a contact address in a passenger arrival card produced by the Department. The fourth address is the address given as the registered office of Blue Edge. It also appears to be Mr Cole's residential address and confirmed as such by him in his conversation with Mr McCoy, to which I have referred. The fifth address is the office of Bedford CA. 22 The email addresses to which it is proposed that scanned copies of the relevant documents be sent are email addresses which, the evidence shows, have been used by the examinee in his recent communications with Bedford CA and in particular, Mr Rose and Mr Cole. 23 The telephone number to which the plaintiffs intend to send the text message is, as I have already recorded, the contact telephone number which was given by the examinee as his telephone number to the Department and also to Bedford CA. It is a number that was used very recently by the examinee to contact Mr Cole. DISPOSITION 24 For these reasons, I propose to grant orders substantially as sought by the plaintiffs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate: Dated: 27 May 2016 SCHEDULE OF PARTIES NSD 114 of 2016 Plaintiffs Second Plaintiff: DAVID BENNETT AS FOREIGN REPRESENTATIVE OF CENTAUR LITIGATION SPC, CENTAUR LITIGATION LTD AND CENTAUR LITIGATION UNIT SERIES 1 LTD (EACH IN LIQUIDATION) (EACH A COMPANY REGISTERED IN THE CAYMAN ISLANDS) Third Plaintiff: SAID JAHANI AS FOREIGN REPRESENTATIVE OF CENTAUR LITIGATION SPC, CENTAUR LITIGATION LTD AND CENTAUR LITIGATION UNIT SERIES 1 LTD (EACH IN LIQUIDATION) (EACH A COMPANY REGISTERED IN THE CAYMAN ISLANDS) Defendants Second Defendant: CENTAUR LITIGATION LTD (IN LIQUIDATION) (A COMPANY REGISTERED IN THE CAYMAN ISLANDS) Third Defendant: CENTAUR LITIGATION UNIT SERIES 1 LTD (IN LIQUIDATION) (A COMPANY REGISTERED IN THE CAYMAN ISLANDS)