Federal Court of Australia Fire and Safety Tasmania Pty Ltd as trustee for the Willis Family Trust trading as Fire and Safety Tasmania v Fitzpatrick [2020] FCA 1741 File number: TAD 32 of 2020 Judgment of: KERR J Date of judgment: 2 December 2020 Catchwords: PRACTICE AND PROCEDURE – application for abridged and substituted service ahead of urgent hearing of application for interlocutory relief – orders made for abridged service – orders for substituted service not made, but Applicant granted liberty to make a further application for such orders on short notice Legislation: Federal Court Rules 2011 (Cth) r 10.24 Division: Fair Work Division Registry: Victoria National Practice Area: Employment and Industrial Relations Number of paragraphs: 10 Date of hearing: 2 December 2020 Counsel for the Applicant: Rebecca Crawford of Simmons Wolfhagen ORDERS TAD 32 of 2020 BETWEEN: FIRE SAFETY TASMANIA PTY LTD ACN 139 336 271 AS TRUSTEE FOR THE WILLIS FAMILY TRUST TRADING AS FIRE AND SAFETY TASMANIA ABN 75 601 456 962 Applicant AND: MALCOLM ALAN FITZPATRICK First Respondent XTREME FIRE PROTECTION PTY LTD ABN 43 644 949 100 Second Respondent order made by: KERR J DATE OF ORDER: 2 december 2020 THE COURT ORDERS THAT: 1. The Applicant's application for interlocutory relief be listed for hearing at 10:15am on Friday 4 December 2020. 2. Pursuant to r 1.39 of the Federal Court Rules 2011 (Cth) (the Rules), the time for service of the Originating Process and Concise Statement filed by the Applicant on 30 November 2020 and the affidavit evidence to be relied upon at the hearing of the application for interlocutory relief set out in the Originating Process is abridged to 1:00pm on Thursday 3 December 2020. 3. The Applicant have liberty at short notice to make any application for substituted service. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT KERR J: 1 On 30 November 2020 the legal representatives of the Applicant advised the Court that the Applicant was seeking an urgent ex parte hearing of an interlocutory application (filed 1 December 2020) to abridge the time for the service of its Originating Process and Concise Statement as had been lodged earlier that day. 2 The orders the Applicant sought to have made ex parte were: 1. Pursuant to rule 1.39 of the Federal Court Rules 2011 (the Rules), an order that the time for service of the Originating Process and Concise Statement filed by the Applicant on 30 November 2020 and the affidavit evidence to be relied upon at the hearing of the application for interlocutory relief set out in the Originating Process is abridged to 1.00pm on 3 December 2020. 2. Pursuant to rule 10.24 of the Rules, an order that the Originating Process and Concise Statement filed by the Applicant on 30 November 2020 and the affidavit evidence to be relied upon at the hearing of the application for interlocutory relief set out in the Originating Process is taken to have been served upon: a. the First Respondent, by: i. the practitioner for the Applicant sending by email to the email address …; and ii. leaving at the address … b. the Second Respondent, by: i. the practitioner for the Applicant sending by email to the email address …; and ii. leaving at the address for the director of the Second Respondent, being … 3. Such further or other order as the Court sees fit. 3 The application was set down for hearing at 10:15am today (2 December 2020). 4 Having heard from Ms Crawford who appeared on behalf of the Applicant, I made Order 1 as had been sought but declined to make Order 2. In doing so, I proceeded on the basis that I would make orders orally and publish reasons later. These are my reasons. 5 In explaining the circumstances in which the Applicant was seeking the Court's approval for short service Ms Crawford read and relied on the affidavit of Ms Shelley Jessup sworn and filed on 30 November 2020 and the affidavit of Mr William George Willis that had also been sworn and filed that day. 6 I need not set out the specific passages and the annexures to those affidavits to which I was referred. It is sufficient for the purposes of these reasons that I record that on the evidence before me I regarded myself as entitled to conclude that the Applicant had only recently become aware of information which had led it to believe that the First Respondent, currently still in its employment although suspended and on sick leave, intended upon his ceasing employment with it after 4 December 2020 to set up a business (to be conducted by the Second Respondent of which he is the sole director) as would be in competition with it. I was also satisfied that as a result, the Applicant apprehends that the First Respondent would be proceeding in violation of his obligations to it as an employee. 7 I was satisfied that the Applicant had a plausible basis for seeking to have its application for interlocutory relief in respect of the alleged conduct of the First Respondent listed for hearing before he ceased at the conclusion of 4 December 2020 to be bound by his present duty of fidelity to it as his employer. I discerned no relevant prejudice. To the extent the future conduct of the First Respondent is in issue, he must be assumed to know what he has done and what his intentions are. 8 In those circumstances I accepted that it was open to me, and proper for the Court, to make Order 1 as sought in the interlocutory application today (2 December 2020) and to order that the Applicant's application for other forms of interlocutory relief be listed for hearing on 4 December 2020. 9 I was however not satisfied that the Applicant had established, for the purposes of r 10.24 of the Federal Court Rules 2011 (Cth), that personal service of the Applicant's Originating Process and Concise Statement as has been listed for hearing on 4 December 2014 was "not practicable". In that regard, the evidence before me suggested that the Applicant was well aware of the First Respondent's likely (albeit potentially more than single) whereabouts. Ms Crawford did not submit that there was any real impediment to effective personal service. 10 However, against the contingency that that might prove to be the case I gave leave to the Applicant to bring an application for substituted service on short notice if circumstances arose as might establish that entitlement. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kerr. Associate: Dated: 2 December 2020