Jujube Australia v Natures Treat Pty Ltd (No 1) [2018] FCA 962

FEDERAL COURT OF AUSTRALIA

Jujube Australia v Natures Treat Pty Ltd (No 1) [2018] FCA 962 File number: NSD 762 of 2018

Judge: PERRAM J

Date of judgment: 22 June 2018

Catchwords: COSTS – costs of interlocutory application for substituted service – where respondent appeared at interlocutory hearing

Legislation: Federal Court Rules 2011 (Cth) r 10.23

Cases cited: Jones v Dunkel [1959] HCA 8; 101 CLR 298 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; 186 CLR 622

Date of hearing: 22 June 2018

Registry: New South Wales

Division: General Division

National Practice Area: Intellectual Property

Sub-area: Trade Marks

Category: Catchwords

Number of paragraphs: 7

Counsel for the Applicant: Ms F St John

Solicitor for the Applicant: Legalvision ILP Pty Ltd

Counsel for the Respondents: Mr M Forgacs

Solicitor for the Respondents: Effective Legal Solutions

ORDERS NSD 762 of 2018

BETWEEN: JUJUBE AUSTRALIA Applicant

AND: NATURES TREAT PTY LTD First Respondent

NEDALE HAMDAN Second Respondent

MELISSA JANE KENNELLY Third Respondent BERNARD JUSTIN MCCARTHY Fourth Respondent

JUDGE: PERRAM J DATE OF ORDER: 22 JUNE 2018

THE COURT ORDERS THAT:

1. The Second Respondent pay the Applicant's costs of the interlocutory application for substituted service filed 7 June 2018. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRAM J: 1 This is an application for costs. It arises from an interlocutory application which was filed by the Applicant on 7 June 2018. By that interlocutory application, the Applicant sought an order under r 10.23 of the Federal Court Rules 2011 (Cth) that there be an order for substituted service in respect of the Second Respondent. The reason that application was filed was because the Applicant's solicitors had experienced difficulties in serving the originating application, genuine steps statement and statement of claim on the Second Respondent. 2 The Applicant's efforts to effect service had included, on 14 May 2018, the engagement of a firm of process servers to serve those documents on the Second Respondent at his home address. The Applicant's solicitors also sent the documents via email on 17 May 2018 to the Second Respondent at an email address that the solicitors had obtained. 3 The report from the process server indicates a number of attempts to serve the Second Respondent at his home address. The process server first attended the premises of the Second Respondent on 15 May 2018 at 4:40pm and spoke to the Second Respondent's wife, who confirmed that the Second Respondent lived at that address but was not currently home and would not be home until 11.30pm. The process server attended again on 16 May, but, at that time, there was no response at the premises. The process server attended again on 18 May and observed a vehicle parked in the driveway. However, upon knocking upon the door, there was no response. On 19 May, which was a Saturday, the process server attended the premises and, again, saw a vehicle in the driveway but there was no response. The process server attended again on 26 May and, at that time, spoke to a woman. 4 An inference could be drawn that because there was a vehicle in the driveway there was someone at home. Another inference which could be drawn from that is that if there was someone at home when the door was knocked upon, that person was not answering the door. An inference then could easily be drawn from that that the only person who had a motive not to answer the door was the Second Respondent. That inference is open on the evidence before me. No evidence has been led from the Second Respondent to suggest that he was not home on those occasions and I could more comfortably draw the inference that the Second Respondent was at home on both of those occasions in the absence of that evidence. I propose to draw that inference (see Jones v Dunkel [1959] HCA 8; 101 CLR 298). 5 In any event, on 7 June 2018 the Applicant filed an interlocutory application for orders for substituted service. The Applicant's solicitors emailed the application for substituted service to the Second Respondent on 8 June 2018. That was a Friday. The application was returnable before the Court on Tuesday, 12 June 2018. At that time, the Second Respondent appeared and the interlocutory application became unnecessary. 6 There are circumstances in which the appropriate order for an interlocutory application which has become unnecessary by reason of events that have overtaken it be that each party pay their own costs (see Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; 186 CLR 622 at 625 per McHugh J). It is accepted, even in that case, however, that where the application is effectively a foregone conclusion, it may still be appropriate to make an order as to costs. 7 In this case, it seems to me reasonably obvious that the Second Respondent was evading service and, when finally confronted with the reality of an application for substituted service, decided to come to Court. In those circumstances, it seems to me that the appropriate order is that: 1. The Second Respondent pay the Applicant's costs of the interlocutory application for substituted service filed 7 June 2018. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.