FEDERAL COURT OF AUSTRALIA Director, Consumer Affairs Victoria v Vic Solar Pty Ltd [2020] FCA 910 File number(s): VID 111 of 2019 Judge(s): O'BRYAN J Date of judgment: 25 June 2020 Date of publication of reasons: 26 June 2020 Catchwords: PRACTICE AND PROCEDURE – substituted service – whether leave should be granted by the Court pursuant to Rule 10.24 of the Federal Court Rules 2011 for the applicant to serve documents on the first respondent using the proposed method of substituted service Legislation: Federal Court Rules 2011 (Cth), rr 4.04, 4.05, 10.24 Cases cited: ACCC v Yellow Page Marketing BV [2010] FCA 1218 Porter v Freudenberg [1915] 1 KB 857 Date of hearing: 25 June 2020 Registry: Victoria Division: General Division National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Category: Catchwords Number of paragraphs: 26 Counsel for the Applicant: Ms G Costello SC with Mr M Kenneally Solicitor for the Applicant: Legal Services Branch, Consumer Affairs Victoria ORDERS VID 111 of 2019 BETWEEN: DIRECTOR OF CONSUMER AFFAIRS VICTORIA Applicant AND: VIC SOLAR TECHNOLOGIES PTY LTD First Respondent MR SUNNY SRINIVASAN Second Respondent JUDGE: O'BRYAN J DATE OF ORDER: 25 JUNE 2020 THE COURT ORDERS THAT: 1. Pursuant to rule 10.24 of the Federal Court Rules 2011, the service of documents on the respondents be effected by: (a) express posting a USB containing digital copies of the documents to Malcolm Howell, of Jirsch Sutherland, located at Level 30, 140 William Street Melbourne; (b) e-mailing the documents and/or hyperlinks to the documents stored on One Drive to Malcolm Howell of Jirsch Sutherland at MalcolmH@jirschsutherland.com.au; and (c) e-mailing the documents and/or hyperlinks to the documents stored on One Drive to sunny@vicsolar.com.au. 2. Service of documents on the respondents pursuant to paragraph 2 be deemed to be effected 7 days after the documents have been posted and emailed. 3. The applicant's costs be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT O'BRYAN J: Introduction 1 By interlocutory application dated 22 June 2020, the applicant sought orders for substituted service of documents on the respondents under Rule 10.24 of the Federal Court Rules 2011 (Cth) (Rules). In support of the application, the applicant relied on an affidavit of Mr Andrew Bray of Consumer Affairs Victoria affirmed 19 June 2020. 2 The application was listed for hearing on 25 June 2020 via Microsoft Teams, consistently with the Federal Court's Special Measures Information Note (SMIN-1). At the hearing, there was no appearance by the respondents either in person or via Microsoft Teams. 3 At the hearing, I made the orders sought by the applicant. These are my reasons for making those orders. Background 4 This proceeding was commenced on 14 February 2019 by the service of an originating application and statement of claim by the applicant. The respondents are Vic Solar Technologies Pty Ltd (Vic Solar) and Mr Srinivasan who is the sole director of Vic Solar. The respondents retained and were for a period of these proceedings represented by Corrs Chambers Westgarth. The respondents filed the required notice of defence on 21 May 2019, after also filing a request for further and better particulars on 25 March 2019. 5 On 15 November 2019, I made orders timetabling the matter for trial, requiring, among other things, evidence to be filed and served by the applicant by 24 February 2020 and by the respondent in April 2020; the applicant to provide material in reply in May 2020; and both parties to file and serve an outline of written submissions and objections to evidence by 19 June 2020 (November orders). The proceeding has been listed for trial on the question of liability commencing 13 July 2020. 6 The evidence shows that, on 19 November 2019, Malcolm Kimbal Howell of Jirsch Sutherland of Level 30/140 William Street, Melbourne, Victoria was appointed as administrator of Vic Solar. 7 On 3 February 2020, a Deed of Company Arrangement was entered into between Mr Howell as administrator, Vic Solar, Mr Srinivasan and Clean Energy Co Australia Pty Ltd. The address of Vic Solar was given as Mr Howell's business address. The address for Mr Srinivasan was given as 3 Tintern Terrace, South Morang, Victoria (South Morang address). 8 On 17 February 2020, a few days before the applicants were required to file and serve their evidence on the respondents, Corrs Chambers Westgarth filed a notice of ceasing to act under r 4.04(3) or 4.05(1)(b) of the Rules. The notice stated that the last known residential or business address of the respondents was 8/40 Abbots Road, Dandenong South, Victoria (Dandenong South address), which was previously the business address of Vic Solar. 9 By r 4.04(2) or 4.05(2), the respondents were required to file a notice of address for service with the Court. The respondents have failed to do this. 10 On or about 17 February 2020, the applicant contacted Corrs Chambers Westgarth to ask how Mr Srinivasan could be contacted and was informed by the responsible partner of that firm that Mr Srinivasan could be contacted by the email address sunny@vicsolar.com.au and by an identified mobile number. 11 Since receiving the notice of ceasing to act from Corrs Chambers Westgarth, the applicant has endeavoured to serve papers on the respondents in accordance with the November orders and otherwise communicate with the respondents. 12 On 20 February 2020, the applicant obtained an ASIC extract for Vic Solar showing that: (a) the registered office of Vic Solar is the Dandenong South address; (b) the shareholder of Vic Solar is a company named s & Z Investments (AU) Pty Ltd of 15 Wiltshire Drive, Kew, Victoria (Kew address); (c) Mr Srinivasan is listed as a previous shareholder at the South Morang address. 13 On 26 February 2020, the documents required to be served by orders 2 and 3 of the November orders, being lay affidavit material and other evidence documents, were sent to the Dandenong South address by registered post. 14 On 27 February 2020, the applicant telephoned the mobile number of Mr Srinivasan and was met with a message that the phone's voicemail inbox was full. 15 On 23 March 2020, the applicant sent a letter to Mr Srinivasan requesting information regarding his future representation in these proceedings and other matters to the email address sunny@vicsolar.com.au. The applicant received no response to the email (nor was the email returned as undeliverable). 16 On 24 March 2020, the applicant engaged Servedoc Pty Ltd (Servedoc) to serve the documents required to be served by orders 2 and 3 of the November orders on Mr Srinivasan at the Dandenong South address and at 45A Atkinson Street, Templestowe, Victoria (Templestowe address). The Templestowe address was identified as Mr Srinivasan's residential address via a Vic Roads Driver Licencing System search undertaken by an officer of the applicant authorised for that purpose. 17 By affidavit dated 27 April 2020, Mr Allen Salib of Servedoc deposed that: (a) on each of 25 March 2020 and 3 April 2020, he attended the Dandenong South address and on each occasion the address appeared to be a vacant and unoccupied industrial property with no signage; (b) on each of 25 March 2020, 5 April 2020 and 13 April 2020, he attended the Templestowe address, rang the doorbell, but no one answered despite there being a black BMW motor vehicle in the driveway. 18 On 3 June 2020, the applicant again attempted to telephone the mobile number of Mr Srinivasan and was again met with a message that the phone's voicemail inbox was full. 19 On 4 June 2020, the applicant sent documents required to be served by orders 2 and 3 of the November orders by registered post to the Kew address and the South Morang address. On the same day, the applicant sent an electronic copy of the documents by email to sunny@vicsolar.com.au, also notifying Mr Srinivasan that the documents were contained on USB stick and could be provided by arrangement if it would not reach Mr Srinivasan at either the Kew or South Morang addresses. Also on that same day, the applicant again engaged Servedoc to serve Mr Srinivasan at the Kew address and the South Morang address. 20 By affidavit dated 15 June 2020, Mr Salib of Servedoc deposed that: (a) on 5 June 2020 he attended the Kew address, found that the property was in a small and securely gated community and there was no response via the intercom located outside the front entrance; (b) on 8 June 2020 he re-attended the Kew address and again received no response via the intercom located outside the front entrance; (c) as at the date of swearing the affidavit, he had been unable to serve Mr Srinivasan at the Kew Address. 21 By affidavit dated 16 June 2020, Mr Salib of Servedoc deposed that: (a) on 12 June 2020 he attended the South Morang address and found high front gates at the front of the property which were padlocked from inside. As there was no way to gain access to the property, he yelled to residents and received no reply. (b) on 13 June 2020 he re-attended the South Morang address. A male resident answered the door and advised that Mr Srinivasan did not live at the address. (c) as at the date of swearing the affidavit, Mr Salib had been unable to serve Mr Srinivasan at the South Morang Address. 22 On 12 June 2020, the applicant sent an electronic link to the electronic court book by email to sunny@vicsolar.com.au. At 2:29 pm on that same day, the applicant received a notification that the link had been opened. Consideration of the application for substituted service 23 In the circumstances recounted above, I am satisfied that the orders for substituted service sought by the applicant are appropriate. 24 The respondents were legally represented and have defended this proceeding. After their legal representatives ceased to act, the respondents failed to provide an address for service to the applicant in breach of the rules. I infer in the circumstances given above that the breach was deliberate and that the respondents are now seeking to avoid service by the applicant. 25 The method of substituted service sought by an applicant under r 10.24 of the Rules should be one which, in all reasonable probability, if not certainty, will be effective to bring knowledge of the process to the respondent: Porter v Freudenberg [1915] 1 KB 857 at [889]; ACCC v Yellow Page Marketing BV [2010] FCA 1218 at [35]. 26 I am satisfied that service of documents by email to the address sunny@vicsolar.com.au will, in all probability, bring the documents to the knowledge of Mr Srinivasan and thereby Vic Solar. The email address was provided to the applicant by the respondents' former lawyers and the evidence indicates that the email address remains active and a link attached to a recent email has been accessed. I am also satisfied that service of documents on Mr Howell of Jirsch Sutherland is likely to result in the documents coming to the knowledge of Mr Srinivasan, given Mr Howell's role as administrator of Vic Solar. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Bryan. Associate: Dated: 25 June 2020