Federal Court of Australia Rowe (by next friend Guscott) v Barton as Trustee for Barton Family Trust trading as Sealwerx WA [2021] FCA 196 File number: WAD 196 of 2020 Judgment of: JACKSON J Date of judgment: 8 March 2021 Catchwords: PRACTICE AND PROCEDURE - interlocutory application for substituted service Legislation: Federal Court Rules 2011 (Cth) r 10.24 Cases cited: Australian Building and Construction Commissioner v Windus [2019] FCA 1526 Commissioner of Taxation v Caratti (No 2) [2018] FCA 1500 Division: General Division Registry: Western Australia National Practice Area: Commercial and Corporations Sub-area Commercial Contracts, Banking, Finance and Insurance Number of paragraphs: 13 Date of hearing: 8 March 2021 Counsel for the Applicant: Mr D Clarke Solicitor for the Applicant: Maurice Blackburn Lawyers Counsel for the Respondent: The respondent did not appear ORDERS WAD 196 of 2020 BETWEEN: MICHELLE LEE ROWE (BY HER NEXT FRIEND RANDALL GUSCOTT) Applicant AND: GARRY WILSON BARTON AS THE TRUSTEE FOR BARTON FAMILY TRUST TRADING AS SEALWERX WA (ABN 60 903 837 536) Respondent order made by: JACKSON J DATE OF ORDER: 8 MARCH 2021 THE COURT ORDERS THAT: 1. Pursuant to r 10.24(c) of the Federal Court Rules 2011 (Cth), each of the interlocutory application for judgment in default dated 17 December 2020 (Application), the orders made on 21 December 2020, any affidavit filed by the applicant in support of the Application, any outline of submissions filed by the applicant in support of the Application, any minute of orders the applicant seeks by way of the Application, any list of authorities filed by the applicant in support of the Application and these Orders (together, Documents) will be taken to have been served on the respondent, Garry Wilson Barton as Trustee for the Barton Family Trust trading as Sealwerx WA (ABN 60 903 837 536), on the happening of the last of the following events: (a) the sending of the Documents by pre-paid post in an envelope addressed to the respondent at 15 Ruse Street, Osborne Park, Western Australia 6017; (b) the sending of the Documents by pre-paid post in an envelope addressed to the respondent at the address contained in paragraph 16 of the affidavit of Beverley Janine Ward sworn 19 February 2021 which is annexure DEC-4 of the affidavit of Daniel Edward Clarke affirmed 24 February 2021; and (c) the sending by email to the email address given at paragraph 2(b) of the interlocutory application dated 26 February 2021, of portable document format (pdf) copies of the Documents. 2. With each of the methods of correspondence identified in paragraphs 1(a), (b) and (c) above, the applicants must include a covering letter or email, as the case may be, stating as follows: Dear Mr Barton Ms Rowe, the applicant in proceeding WAD 196 of 2020, has filed an interlocutory application seeking default judgment against you for claims made by her in the amended originating application and amended statement of claim. The court has ordered that you may be served with the documents that have been filed in support of the default judgment application by sending them by way of pre-paid post to your last known business address and your last known home address, and by emailing them to an email address believed to be yours. IMPORTANT: The application for default judgment is listed for an interlocutory hearing in Perth on Tuesday 23 March 2021 at 10.15 am AWST. If you wish to defend the application for default judgment, you must file a notice of address for service in the Federal Court of Australia before that time. If you do not attend the interlocutory hearing, judgment may be entered against you, which may include the making of orders that you pay damages to the applicant, and other orders adverse to your interests may be made. 3. The applicant must file an affidavit deposing to the occurrence of the events contemplated in paragraph 1 of these Orders as soon as possible after the happening of those events. 4. Costs are reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (edited from the transcript) JACKSON J: 1 The applicant applies in this proceeding for damages and for penalties and other orders under the Fair Work Act 2009 (Cth). The nub of the application is that when the applicant was employed by the respondent, the respondent failed to make certain superannuation contributions which he was required to make under a relevant award, and also pursuant to other obligations identified in the amended statement of claim. The applicant alleges that as a result of that failure, she did not have the benefit of a disability insurance policy associated with the superannuation fund at a time when, on 5 April 2015, she suffered a stroke, which she says has left her totally and permanently disabled from work. The applicant claims that if she had been covered by that insurance policy, she would have been entitled to benefits in the order of $210,000. 2 The respondent has been served with the originating application and the statement of claim and amended versions of those documents. However, he has not filed any notice of address for service in this matter and has failed to appear at any hearing or to comply with directions the court has made, including orders requiring him to file and serve a defence. The applicant has therefore applied for judgment to be entered in her favour by reason of the default. That application is listed for hearing on 23 March 2021. 3 The present interlocutory application for substituted service arises out of the fact that the applicant has tried on multiple occasions to serve the respondent with the interlocutory application for default and documents relevant to the application. The main evidence as to the attempts to serve the respondent with those documents is contained in an affidavit of Daniel Clarke affirmed on 24 February 2021, which has as one of its annexures an affidavit of a process server, Beverley Ward. Ms Ward's affidavit deposes to 15 attempts to serve Mr Barton at his business address in Osborne Park, ranging between 4 January 2021 and 18 February 2021. On each of the attempts, the business premises appeared to be unattended and often locked, save for one occasion, on 18 February 2021, where Ms Ward spoke to a person who appears to have been employed by a different business sharing the premises. That person told Ms Ward that Mr Barton was not at the premises, and that he also works from his home in Bullsbrook. 4 While the applicant had been successful in previous service of documents on Mr Barton at the business address, on the last such occasion, the process server provided a report to the effect that when served with documents, Mr Barton refused to accept them, shouted abuse at the process server, threw the documents across the car park, and then picked them up and placed them in a bin while shouting for the process server to depart the property. Obviously, to the extent that Mr Barton was once willing to accept service, he no longer is. 5 On 18 February 2021, Ms Ward attended at the home address of Mr Barton in Bullsbrook obtained from a title search, to find that the gates there were locked and that she could not enter the premises. She could not see the house from the road. She waited 20 minutes and sounded her horn, but no one came to the gates. 6 There is also evidence in a subsequent affidavit of Mr Clarke affirmed 5 March 2021 that, for a period of time from 2018 onwards, his firm had communicated with the respondent by way of an email address, being a business email address. The respondent or another person who can be inferred to have been acting on his behalf did reply, on occasion, to those earlier emails. 7 Rule 10.24 of the Federal Court Rules 2011 (Cth) provides: If it is not practicable to serve a document on a person in a way required by these Rules, a party may apply to the Court without notice for an order: (a) substituting another method of service; or (b) specifying that, instead of being served, certain steps be taken to bring the document to the attention of the person; or (c) specifying that the document is taken to have been served: (i) on the happening of a specified event; or (ii) at the end of a specified time. 8 In Commissioner of Taxation v Caratti (No 2) [2018] FCA 1500 at [10], Colvin J said: The preponderance of authority is to the effect that the current rule requires the applicant for orders for substituted service to demonstrate that it is not sensible or realistic to effect personal service even though it may be possible or feasible to do so. This will usually be done by taking steps to effect personal service and providing evidence as to any difficulties that have arisen in doing so. It is not necessary to go so far as to demonstrate that there is an inability to effect personal service or that it would be extraordinarily difficult to do so. Further, there must be a proper evidential basis upon which to conclude that in all probability the mode of substituted service that is proposed will bring the relevant documents to the attention of the party to be served. 9 In Australian Building and Construction Commissioner v Windus [2019] FCA 1526 at [8], I expanded on those principles as follows (citations omitted): An order for substituted service under r 10.24 must be based on a reasonable probability that the identified method of service will inform the intended recipient. Where experience has shown that a particular method of communication has resulted in material being brought to the attention of the person to be served, an order for substituted service according to that method will be likely to achieve the same result. 10 I am satisfied in the present case that the evidence demonstrates that it is not sensible or realistic to effect personal service on the respondent, given the numerous attempts to do so at both his business and home address and his evident unwillingness to receive further documents in this proceeding. 11 I am also satisfied on the basis of evidence provided concerning previous communication with the respondent by way of email that there is a reasonable probability that the documents served will be brought to his attention if they are served by way of email at the address proposed in the application. Similarly, it may be inferred that it is likely that documents posted to the respondent's business address and home address will come to his attention. While attempts to serve him personally at those premises have recently been unsuccessful, the evidence does not suggest that he has abandoned either premises. 12 In my view, it is appropriate to require the documents to be served on the respondent to be accompanied by a communication setting out in clear terms the possible consequences for him if he does not attend the hearing of the interlocutory application for default judgment. The wording of that communication will be included in the orders to be made. 13 For those reasons, I will make orders in terms which reflect some amendment to the orders sought by the applicant in the application for substituted service. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson. Associate: Dated: 9 March 2021