Federal Court of Australia Hillier v Martin (No 5) [2021] FCA 949 File number: SAD 113 of 2020 Judgment of: CHARLESWORTH J Date of judgment: 6 August 2021 Date of publication of reasons 10 August 2021 Catchwords: PRACTICE AND PROCEDURE – company joined as a party to proceedings – company served with initiating documents in accordance with r 10.02 of the Federal Court Rules 2011 (Cth) and s 109X of the Corporations Act 2001 (Cth) – Court of its own initiative proposing orders fixing a date by which the company is to file a notice of address for service – notice of address for service to be filed four weeks after service of initiating documents on the company – Court proposing orders providing for service of documents on the company pending filing of the notice of address for service – directors seeking to be heard on the question and opposing the orders proposed – whether the continued requirement to serve documents on the company by delivery to a physical location is productive of unnecessary cost and delay Legislation: Corporations Act 2001 (Cth) s 109X Federal Court of Australia Act 1976 (Cth) ss 37M, 37N Federal Court Rules 2011 (Cth) rr 1.34, 1.35, 1.36, 1.40, 4.01, 9.05, 10.02, 11.02, 11.06 Cases cited: Hillier v Martin (No 4) [2021] FCA 710 Division: General Division Registry: South Australia National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Number of paragraphs: 51 Date of hearing: Determined on the papers ORDERS SAD 113 of 2020 BETWEEN: JAMES HILLIER Applicant AND: VICTORIA MARTIN First Respondent NORDBURGER OPERATIONS PTY LTD Second Respondent ERIK VARI PTY LTD Third Respondent order made by: CHARLESWORTH J DATE OF ORDER: 6 AUGUST 2021 THE COURT ORDERS THAT: 1. The second respondent is to file and serve a notice of address for service on or before 11 August 2021. 2. Until a notice of address for service is filed by the second respondent, service by the applicant of any document in the proceeding upon the second respondent may be effected by emailing the document to each of the directors of the second respondent at the email addresses last used by them in any capacity to communicate with the applicant in relation to these proceedings. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT CHARLESWORTH J 1 On 6 August 2021 I made orders administratively in this proceeding in the following terms: 1. The second respondent is to file and serve a notice of address for service on or before 11 August 2021. 2. Until a notice of address for service is filed by the second respondent, service by the applicant of any document in the proceeding upon the second respondent may be effected by emailing the document to each of the directors of the second respondent at the email addresses last used by them in any capacity to communicate with the applicant in relation to these proceedings. (the 6 August orders). 2 As can be seen, the orders fixed a date by which the second respondent Nordburger Operations Pty Ltd is to file an address for service. The order in [2] also made provision for the means by which the applicant in the proceedings is to serve documents on Nordburger and so facilitated communications between the parties until the order in [1] is complied with. It is anticipated that the order in [2] will have practical application for a short period (a matter of days) after which there should be a notice of address for service on the Court record. 3 On the information before me, Nordburger has two directors, Mrs Victoria Martin (the first respondent) and her husband Mr Thomas Martin. Mr Martin has been in attendance at most of the multiple case management and interlocutory hearings in this matter. At times, he has directly communicated with my Chambers. At other times he has sought to make submissions in his personal capacity and in his capacity as a director of Nordburger. In making the 6 August orders I proceeded on the basis that both directors of Nordburger had knowledge of the progress of the proceedings, including in relation to the matters affecting or potentially affecting Nordburger's interests as they perceive them to be. 4 The 6 August orders were foreshadowed to the parties by email correspondence through my Associate on 4 August 2021 (copied to Mr Martin), expressed in the following terms: Dear Parties I refer to the case management hearing conducted earlier today. Justice Charlesworth considers it appropriate to fix a date by which the second respondent is to file a notice of address for service. The Court stated at the hearing that the time for filing the notice should commence to run from 13 July 2021, however it is apparent that there is no time fixed by any rule of the Court that applies in the present circumstances. The Court also considers it appropriate to make express provision for the method of communicating with the second respondent pending the filing of a notice of address for service on its behalf. It is anticipated these issues may be resolved without the need for a further attendance. The parties are encouraged to agree orders addressing both topics. In the absence of an agreement, the parties are at liberty to to [sic] make submissions in opposition to the following orders as now proposed by the Court: 1. The second respondent is to file and serve a notice of address for service on or before 11 August 2021. 2. Until a notice of address for service is filed by the second respondent, service by the applicant of any document in the proceeding upon the second respondent may be effected by emailing the document to each of the directors of the second respondent at the email addresses last used by them in any capacity to communicate with the applicant in relation to these proceedings. This email is copied to Mr Thomas Martin by way of the email address last used by him to communicate with the Court. It is so copied for the limited purpose of ensuring that the Court's communication is brought to the attention of the second respondent's directors. Your substantive responses are required by 4.00pm on 5 August 2021. To the extent that Mr Martin seeks to represent the company in relation to any substantive response, the company's co-director should confirm that he is authorised by the company to do so. Subject to further order, any dispute in relation to these issues will be determined on the papers. 5 The applicant did not oppose the proposed orders. 6 Mr Martin sent an email to my Associate as follows: Dear Associate The proposed orders envisage that the applicant's solicitors will correspond directly with Victoria, despite her being presently represented by solicitors. I would respectfully submit that this is inappropriate, given that any such communication would ordinarily be contrary to professional conduct rules. Service of any document can be effected in accordance with the Federal Court Rules by delivery to the second respondent's registered office. There is accordingly no need for any special arrangement which involves solicitors corresponding directly with a legally represented lay person. 7 Mrs Martin, by her solicitor, informed the Court that she authorised her co-director Mr Martin to communicate with the Court in those terms. Having considered Mr Martin's submission, I proceeded to make the 6 August orders in the terms that had been foreshadowed. The reasons for making the order were communicated to the parties by my Associate in the following terms: Dear Parties Your responses to my recent email have been brought to Justice Charlesworth's attention. Justice Charlesworth has determined the question on the papers and will make orders in the terms foreshadowed by the Court. The following reasons are provided. They will be repeated in open Court at the request of any party. The submission of Mr Martin has been considered. The submission is rejected on the basis that service on the corporation in the manner proposed will be productive of unnecessary cost and delay. The order proposed by her Honour anticipates that emails to Mrs Martin in her capacity as a director may be directed to her through the email address of her solicitor in this proceeding, that being the last email address used by her to communicate with the applicant. It is up to Mrs Martin to decide whether she provides an alternative email address for that purpose, if she contends that she is not legally represented when acting in her capacity as a director of the company (which should be made clear to the Court and to the other parties). Alternatively, the directors may nominate Mr Martin as the only email recipient to receive communications on the company's behalf. However, as that proposal was not advanced by either director, the orders will now be made and entered as earlier proposed by the Court. Any rule or provision providing for service on the company by other means are dispensed with in accordance with r 1.34 of the Federal Court Rules 2011 (Cth). The order in relation to service does not constitute a grant of leave for the company to be represented in the proceedings other than by a lawyer. If the directors perceive any disadvantage arising from the orders, the disadvantage may be avoided by causing the company to file an address for service as a matter of priority. 8 On Saturday 7 August 2021, Mr Martin sent an email to my Associate in the following terms: If the process mandated for service of a corporation under the Federal Court Rules is to be dispensed with on the basis that it will be productive of unnecessary cost and delay, it is necessary for that to be recorded in a more formal process than the email below. It would also appear necessary for the written reasons to state why the process mandated for service under the Federal Court Rules would be productive of unnecessary cost and delay in this case. 9 That email was copied to the other parties, including Mrs Martin. 10 The 6 August orders concern matters of practice and procedure. The subject matter is not such as to attract an obligation to provide formal written reasons in addition to the short written reasons communicated by way of my Associate's email. However, in my discretion, I accede to Mr Martin's request for formal written reasons, including for the purpose of addressing the matters that he claims to be "necessary" and "mandated" by reference to the facts and circumstances of the present case. 11 Section 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act) provides: 37M The overarching purpose of civil practice and procedure provisions (1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes: (a) according to law; and (b) as quickly, inexpensively and efficiently as possible. (2) Without limiting the generality of subsection (1), the overarching purpose includes the following objectives: (a) the just determination of all proceedings before the Court; (b) the efficient use of the judicial and administrative resources available for the purposes of the Court; (c) the efficient disposal of the Court's overall caseload; (d) the disposal of all proceedings in a timely manner; (e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. (3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose. …. 12 The parties must conduct this proceeding in a way that is consistent with the overarching purpose: FCA Act, s 37N(1). 13 In exercising its powers, the Court may make orders of its own initiative: Federal Court Rules 2011 (Cth), r 1.40(a). The Court has the discretion to dispense with the Rules: r 1.34. If the Court makes an order that is inconsistent with the Rules, the order will prevail: r 1.35. The Court may make an order other than in open court: r 1.36. 14 Rule 10.02 provides that a document that is to be served personally on a corporation must be served in accordance with s 109X of the Corporations Act 2001 (Cth). It relevantly provides: 109X Service of documents (1) For the purposes of any law, a document may be served on a company by: (a) leaving it at, or posting it to, the company's registered office; or (b) delivering a copy of the document personally to a director of the company who resides in Australia or in an external Territory; or (c) if a liquidator of the company has been appointed—leaving it at, or posting it to, the address of the liquidator's office in the most recent notice of that address lodged with ASIC; or (d) if an administrator of the company has been appointed—leaving it at, or posting it to, the address of the administrator in the most recent notice of that address lodged with ASIC; or (e) if a restructuring practitioner for the company has been appointed—leaving it at, or posting it to, the address of the restructuring practitioner in the most recent notice of that address lodged with ASIC. (2) For the purposes of any law, a document may be served on a director or company secretary by leaving it at, or posting it to, the alternative address notified to ASIC under subsection 5H(2), 117(2), 205B(1) or (4) or 601BC(2). However, this only applies to service on the director or company secretary: (a) in their capacity as a director or company secretary; or (b) for the purposes of a proceeding in respect of conduct they engaged in as a director or company secretary. … (6) This section does not affect: (a) any other provision of this Act, or any provision of another law, that permits; or (b) the power of a court to authorise; a document to be served in a different way. … 15 Persons who are joined as parties to a proceeding from the outset are ordinarily required to file a notice of address for service before the first return date: r 11.06. A notice of address for service for a company must be filed by a lawyer: r 11.02; and see r 4.01(2). Rule 9.05 provides that the Court may make an order joining a person as a party. A note to that Rule confirms that the Court may make various ancillary orders, including for the service of the joinder order and any other document in the proceeding, for the amendment of a document in the proceeding and for the filing of a notice of address for service by the joined party. The power to make orders of that kind may be sourced in other provisions of the Rules. They are an ordinary incident of the Court's powers to make case management orders for the orderly progression of a matter to trial and do not usually give rise to controversy. 16 At this juncture it is necessary to set out some relevant background. 17 The 6 August orders were made two days after a long case management hearing concerning a number of disputed matters, including matters concerning the status of Nordburger as a party to these proceedings. At that hearing, Counsel for the applicant asked the Court to read an affidavit of the applicant's solicitor Mr Gene Sykes Bidstrup, sworn that day. I had regard to the correspondence annexed to the affidavit when proposing and making the 6 August orders. Some of the events described below are disclosed in the affidavit. The events themselves are not in dispute. 18 On 24 June 2021 I made an order granting the applicant leave to join Nordburger as a party. The joinder was required as a condition of the grant of leave to amend the pleading because the relief sought in two sub-paragraphs of the amended proceeding appeared to require the cooperation of Nordburger in its capacity as trustee of a trust. I made a further order that in the event that the leave to join Nordburger was exercised, Nordburger was to file a defence on or before 19 July 2021. 19 The applicant immediately exercised the grant of leave to join Nordburger as a party. 20 At a hearing conducted on the following day, I granted Nordburger leave to be represented by a non-lawyer (being Mr Martin) for the purposes of urging the Court to defer pronouncing judgment on a discovery application, set down for delivery that day. The adjournment application was dismissed: Hillier v Martin (No 4) [2021] FCA 710 at [64] – [89]. Orders were pronounced on the discovery application and the matter was set down for a further case management hearing on 4 August 2021. At the hearings on 24 June and 25 June 2021 the Court referred to the necessity to ensure that the relief sought on the amended statement of claim was reflected in an amended originating application. 21 On 1 July 2021 at 8.56 am I caused my Associate to send an email to the applicant (by his solicitor) and to Mrs Martin (by her solicitor) expressed as follows: Dear Practitioners I refer to the hearings in this matter on 24 and 25 June 2021. As foreshadowed at those hearings, Justice Charlesworth considers it appropriate to grant leave for the applicant to file and serve an amended originating application reflecting the prayer for relief sought in the second amended statement of claim. Justice Charlesworth also proposes that there be an order to the effect that Nordburger Operations Pty Ltd be taken to be a party as and from the time of filing of the second amended statement of claim (being the time that leave to join it as a party was exercised by the applicant). Justice Charlesworth also proposes orders providing for a further amendment to the originating application in the event that the grant of leave to join the Craig Interests is exercised. Orders are proposed as follows: 1. The applicant is granted leave to file and serve an amended originating application reflecting the prayer for relief sought in the second amended statement of claim, such leave to be exercised on or before 1 July 2021. 2. Nordburger Operations Pty Ltd be taken to have been joined as the second respondent as and from the time that the second amended statement of claim was filed. 3. The applicant has leave to file and serve a second amended originating application so as to reflect the relief sought on any third amended statement of claim filed in accordance with paragraph 4 of the orders made on 24 June 2021, such leave to be exercised on or before 5 July 2021. The applicant is asked to confirm that it would be able to file the amended originating application as contemplated by paragraph1 of the above proposed orders today. That will enable the Court's records to be adjusted and so permit Nordburger Operations Pty Ltd to access the Court Portal and file documents in the proceeding. Would the respondent please bring this email to the attention of the co-director of Nordburger Operations Pty Ltd. In the absence of any opposition form the parties, these orders will be entered administratively at 2 pm today. 22 As can be seen, the email contained a request that Mrs Martin bring the email to the attention of Mr Martin. 23 Mrs Martin objected to the order for the filing of an amended originating application on the basis that the amended document maintained an unamended claim for interim relief that she has previously applied to have struck out. I have previously ordered that the strike out application be deferred until a dispute in connection with discovery is resolved. I caused my Associate to inform Mrs Martin that the filing of the amended originating application would be without prejudice to her strike out application, which is yet to be determined. By her solicitor, Mrs Martin then informed the Court that she did not oppose the orders in the terms proposed. 24 Mrs Martin did not inform the Court that she was unable or unwilling to respond to the Court's correspondence in her capacity as a director of a company, nor did she express any unwillingness to draw the Court's email to the attention of her co-director, Mr Martin, in accordance with my Associate's request. 25 The order in [2] made on 1 July 2021 was expressed in the past tense because by that time a second amended statement of claim had already been filed in the Court. Neither director at that time complained that the order was unworkable because the document had not been formally served on Nordburger on 28 June 2021 (which date had already passed). 26 At the time of the case management hearing on 4 August 2021, Nordburger had not filed a notice of address for service, nor had it filed a defence. Mr Martin was present at the hearing, seated for the most part in the public gallery. Mrs Martin was in attendance by her solicitor and Senior Counsel. No legal practitioner announced an appearance on Nordburger's behalf. 27 Counsel for the applicant asked the Court to read the affidavit of Mr Sykes Bidstrup, which revealed the following. 28 On 28 June and 1 July 2021, the applicant served on Mrs Martin (by way of an email to her solicitor Mr Stephen Williams) the second amended statement of claim and the amended originating application respectively. Each document was served upon her on the same day it was filed. Both documents named Nordburger as a respondent. On both occasions, the applicant's solicitor asked Mr Williams to confirm whether he had instructions to also accept service of the documents on behalf of Nordburger. Subject to what is said below, Mr Williams did not respond. 29 On 13 July 2021 at around 2.00pm, Mr Martin wrote to Mr Sykes Bidstrup expressly on behalf of Nordburger. He asked Mr Sykes Bidstrup to confirm "whether – and if so – when, and how, your firm served the recently amended pleadings" on Nordburger. At around 3.15pm Mr Sykes Bidstrup replied to Mr Martin confirming that he had that day caused the documents to be personally delivered to Nordburger's registered office. The affidavit also shows that on 14 July 2021 Mr Williams confirmed (by email) that his firm was not instructed by Nordburger. Mr Williams stated that another firm of solicitors would be acting for Nordburger in the proceedings. On the same day, Mr Sykes Bidstrup sent an email to Mr Martin asking him to ensure that the legal representatives of Nordburger file a notice of address for service as soon as possible. 30 Mr Martin sent a lengthy response on the following day. He asserted that the applicant was in "default in providing timely and effective service" which gave rise to "several inconvenient consequences". The asserted consequences were said to include the failure by the applicant to effectively join Nordburger as a party, and that the applicant had "lost the permission" it had obtained to amend his pleadings. Mr Martin asserted that the delay in service meant that the program for the filing of further documents (presumably including Nordburger's defence) was unachievable. He also asserted that Nordburger was prejudiced in its capacity to challenge the order I had made on the discovery application. Mr Martin proposed that the applicant accede to certain extensions to court deadlines, to "neutralise" the asserted prejudice. He advanced a proposal whereby the time for service on Nordburger be extended to 13 July 2021 nunc pro tunc (it appears on an assumption that service was otherwise required to be effected at an earlier time to bring about the joinder of Nordburger). Mr Martin proposed that the applicant agree to an extension of time for Nordburger to file its defence and an extension of time to apply for leave to appeal from the order made on the discovery application. 31 It is to be recalled that Mr Martin is not the only director of Nordburger. No order has been made granting Nordburger leave generally in the proceedings to be represented by him. After reading Mr Sykes Bidstrup's affidavit, I had the following exchange with Senior Counsel for Mrs Martin: HER HONOUR: … Mr Ower, it is time for me to address you on something. Your client is the director of this company. MR OWER: Yes, your Honour. HER HONOUR: In fact, through you and Mr Martin, who is sitting in the body of the courtroom, I have an organ of the company present in the courtroom. What is this about? Can you assist me? MR OWER: No, your Honour. HER HONOUR: What is the second director's position? MR OWER: I have no instructions. HER HONOUR: Does she not have a view? MR OWER: I have no instructions in relation to the matter and I can't assist your Honour. 32 That exchange is reminiscent of earlier indications from Mrs Martin's legal advisers to the effect that her legal representation in these proceedings is not necessarily to be assumed to be representation for all purposes that may arise in or in connection with them, and may not extend to receiving or sending communications to or from Mrs Martin in her capacity as a director of Nordburger. I use the word "may" because the scope of legal representation has not been clearly articulated to the Court, and because the legal representatives have at times made submissions that appear to be intended to preserve and maintain the interests of Nordburger as trustee, particularly in relation to discovery. 33 Counsel for Mrs Martin otherwise confirmed that Mr Williams had not responded to the applicant's requests for him to confirm whether or not he had instructions to accept service of documents on behalf of Nordburger. I took that confirmation to relate to the period between 1 July 2021 when the request was made and 14 July 2021 when Mr Williams stated that Nordburger would be represented by a different law firm in the proceedings. 34 Mr Martin then approached the bar table. He stated that he was a "person sufficiently interested in the question of whether service was affected effectively and what consequences that has for the joinder of the second respondent to explain the respondent's position". 35 Mr Martin submitted that the order in [2] made on 1 July 2021 should be interpreted to mean that Nordburger was not legally joined as a party to the proceedings until the second amended statement of claim had been both filed and formally served on the company. He said that Nordburger's status as a party could only be regularised by an order extending the time for service to 13 July 2021 nunc pro tunc, that submission assuming that the time fixed for service was an earlier date. Mr Martin confirmed that he was aware of the applicant's emails to Mr Williams sent on 28 June and 1 July 2021, and he confirmed that he had told Mr Williams not to accept service of the documents on Nordburger's behalf. Mr Martin said that the delay occasioned by Mr Williams' failure to promptly confirm whether he had instructions to accept service was "nothing to do with me". He said it was irrelevant that Mr Williams had not promptly responded because it was the applicant's obligation to serve Nordburger in accordance with the Rules. He asserted that Nordburger was prejudiced by the applicant's delay in effecting formal service. 36 For the purposes of the matters arising at the case management hearing, it was unnecessary to determine whether Nordburger had in fact been prejudiced in the preparation of its defence by virtue of the circumstance that Nordburger was not served in accordance with r 10.02 until 13 July 2021. Nor was it necessary to determine whether the interpretation of the orders of 1 July 2021 as contended for by Mr Martin was correct. Nor was it necessary to determine a contention of Mr Martin to the effect that the orders of 1 July 2021 were made without reference to Nordburger. 37 It was unnecessary to resolve those issues because the applicant did not oppose the Court granting an extension of the time in which Nordburger should file a defence. To avoid further argument in connection with the formalities of service and the status of Nordburger as a party to the proceedings, I made an order extending the time by which the second amended statement of claim was to be "filed" to 13 July 2021, such order expressed to operate nunc pro tunc. That order was not opposed by the applicant, nor by Nordburger. It was consistent with that suggested by Mr Martin in his correspondence as part of a wider proposal affecting such things as the exercise of rights of appeal. In a note to the order, it was emphasised that the extension was granted without the Court having determined the question as to when Nordburger formally became a party, no occasion having arisen for that dispute to be substantively resolved. 38 As stated in my Associate's email of 4 August 2021, the necessity for Nordburger to file an address for service was mentioned at the case management hearing but no order was made fixing a date by which the notice should be filed. As the email states, the Court was previously of the incorrect view that the date for filing the notice could be calculated by reference to a rule of the Court, such that no order fixing a date was necessary. No party addressed the Court on that issue. 39 The case management hearing on 4 August 2021 continued for one and a half hours. I did not consider it expedient to call the matter back on for a further oral hearing in connection with the subject matter of the 6 August orders principally because I had formed a preliminary view that the matter was readily amenable to resolution on the papers. By ensuring that both directors of the company were made aware of the proposed orders, the Court sought to afford Nordburger, by the organ of its board of directors, an opportunity to be heard. Neither director complained that the proposed timeframe was unreasonable or could not be achieved. The date proposed by the Court was four weeks from the date that Nordburger was served with the initiating documents (whether or not it formally became a party on that date or on an earlier or later date). Neither director submitted that the issues forming the subject of the proposed orders were not amenable to determination on the papers. 40 It appeared to the Court that Mrs Martin may not wish to receive correspondence directed to her in her capacity as a director of Nordburger via the solicitors who act for her generally in the proceedings. Whether she is entitled to adopt that view is unnecessary to decide. However, Mrs Martin cannot ignore the circumstance that she is co-director of the company. Until she and her co-director cause Nordburger to file an address for service an issue arises as to how the parties, and indeed the Court, should communicate with Nordburger should it be necessary to do so. Her assertion (via Mr Martin) that the applicant's solicitor would be in breach of the conduct rules by contacting her directly only served to reinforce the pressing need for Nordburger to file an address for service. 41 Rules and orders relating to the service of documents are directed to considerations of substantive fairness. They are directed to ensuring that there is no confusion as to the manner in which parties communicate with each other and, relatedly, to remove doubt as to when a document or communication has been received. They are concerned with the practical necessity to bring the content of a document or communication to the attention of a party. The rules in relation to notices of address for service are concerned not only with the facilitation of communications as between parties, but also concerned to facilitate communications between the parties and the Court itself. 42 The Court is mindful that the formalities of the joinder of Nordburger and orders requiring it to take steps in the proceedings were made in fairly quick succession. However, the timeframes are to be considered in light of the circumstance that Mr and Mrs Martin have been in attendance at most (if not all) hearings and must be taken to have knowledge of the matters arising in the proceedings and the basis for the joinder well before the company was formally joined. Mrs Martin vigorously opposed the more recent amendments to the applicant's pleadings including on grounds concerning the interests of Nordburger and the beneficiaries of the trust of which it is the trustee. 43 Nordburger was served with the originating application and pleadings in their present form by the means specified in r 10.02 more than three weeks ago. Mr Martin proposed that pending the filing of a notice of address for service, the rule in relation to personal service on a corporation should continue to apply. That would have entailed either the delivery of documents to which the rule applies by post (with associated delay), or the attendance of a person at a physical address. The order proposed by the Court provided for the transmission of documents by email, rather than by either of those means. Mr Martin has asked the Court to explain why it considered his proposal productive of unnecessary delay and expense. 44 Plainly the delivery of a document by email transmission is a more immediate and less costly means of service and communication than the ongoing manner of service proposed by Mr Martin. The relative expense associated with personal attendance at a physical location is, plain. The Court considers that additional expense to be unnecessary in circumstances where a corporation in Nordburger's position must file an address for service providing the contact details of a legal practitioner in any event. 45 There is an additional expense associated with the proof of service of future documents in the manner preferred by Mr Martin. The Court is mindful of the potential for confusion as to when a document was served and the potential for some delay between actual service of a document and the document coming to the directors' attention. I consider such matters to be potentially productive of further disputes as to matters of formality and thus productive of further delay. The applicant ought not to be put to the expense of deposing to affidavits of service of future documents in the proceedings when there exists a sensible alternative in the form of email transmission. 46 Before making the 6 August orders, I had regard to the submission that the order proposed by the Court would permit or require the applicant's solicitor do a thing that would ordinarily constitute a breach of a rule regulating the conduct of legal practitioners. As articulated by Mr Martin, the concern seems to be that the order permits the applicant to contact Mrs Martin directly in circumstances where she is otherwise legally represented for the purposes of these proceedings. 47 Mrs Martin's solicitors are either authorised to send and receive communications on her behalf in her capacity as a director of a company (or otherwise relating to that capacity) or they are not. If they are authorised to act for Mrs Martin in respect of matters relating to her status as a director, then there can be no breach of the conduct rules by the applicant's solicitor dealing with Mrs Martin through her solicitor for that purpose. If the retainer is confined in its scope, the nature and purpose of that confinement has not been plainly articulated to the Court. Any such confinement would be one resulting from a choice made by Mrs Martin. To the extent that any such choice has been made, I afford it very little weight. 48 The consequence of such a confinement (if it exists) is that there could be no breach of a conduct rule by sending a communication to Mrs Martin if it be a communication she declines to receive through her solicitors. Whether or not I am correct in that regard, the ultimate duty of the parties' legal advisers is to comply with the duties owed to this Court. I do not understand any conduct rule to provide otherwise. The order in [2] of the 6 August orders serves to remove any ambiguity as to the applicant's rights and obligations vis a vis Mrs Martin irrespective of the content of any professional conduct rule that might otherwise have applied had the order not been made. 49 In all of the circumstances, I considered the matters raised in Mr Martin's submission to be outweighed by the need for a convenient and cost effective means of exchanging documents and correspondence. Mr Martin on behalf of Nordburger has previously exchanged emails with Mr Sykes Bidstrup without any apparent prejudice to the company. It would be an unsatisfactory state of affairs if Mr Martin was permitted to communicate on Nordburger's behalf with the applicant's solicitors by way of email, but the applicant's solicitors required to deliver documents to a bricks and mortar location. 50 The factual background has been incorporated in these reasons for the purpose of explaining why the Court considered it expedient to propose the 6 August orders by its own initiative, why the date of 11 August 2021 was proposed as the date by which the notice of address for service was to be filed, why the Court perceived there to be potential for confusion as to the scope of the retainer to which I have referred, and why the question was determined without an oral hearing. These reasons should not be understood as expressing any concluded view in connection with any question of fact or law left undecided at the case management hearing of 4 August 2021. 51 It remains open to Mrs Martin to propose an email address to which communications addressed to her in her capacity as a director may be sent, if she has not retained a solicitor for the purpose of receiving communications of that kind. It is the Court's expectation that a notice of address for service will be filed and served on 11 August 2021 (tomorrow) in accordance with the 6 August orders, thus obviating the need for Mrs Martin (or for that matter, the Court) to give any further consideration to the issue. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth. Associate: Dated: 10 August 2021