Ahmed v Al-Hussain Pty Ltd t/as The Cheesecake Shop

RARES J: 1 This is an application for leave to serve the second respondent, Zahid Hussain, in Pakistan with the amended originating application under Pt 10 of the Federal Court Rules 2011. 2 Rule 10.43(4) requires an applicant seeking leave to serve outside the jurisdiction to satisfy the Court that it has jurisdiction in the proceeding, it is of a kind mentioned in r 10.42 and that the party has a prima facie case for all or any of the relief claimed in the proceeding. The applicant, on such an application, must also file an affidavit stating the name of the foreign country, here Pakistan, where the second respondent is to be served or is likely to be, the proposed method of service and that that method of service is relevantly permitted by the Convention on the Service Abroad of Judicial Documents in Civil and Commercial Matters done at the Hague on 15 November 1965 (the Hague Convention). 3 The approach of the Court to the establishment of the prima facie case required under r 10.43(4)(c) is that identified in Ho v Akai Pty Ltd (in liq) (2006) 247 FCR 205 at 208 [10] and 215-216 [45] per Finn, Weinberg and Rares JJ. 4 In making findings about the existence of a prima facie case, of course, it is important to bear in mind that, at the stage of the proceedings where this must be done for the purposes of r 10.43, the Court has a limited amount of evidence that may not be in a form that ultimately will be admissible at a final hearing, and the Court does not have the benefit of any evidence given by the person sought to be served. Thus, any findings in these reasons that I make for this purpose are not findings that will necessarily be available to be made, or that would be made, at a final hearing. That is why the standard of a prima facie case identified in Ho 247 FCR 205 is that, on the material before the Court, inferences are open which, if translated to findings of fact, would support the relief claimed to a sufficient degree that warrants the use of the Court's processes to resolve it and to cause the proposed respondent to be involved in litigation in the Court.

Background 5 The applicant, Jameel Ahmed, in his affidavits of 11 and 27 July 2018, has set out his account of the relationship he claims to have had with the first respondent, Al-Hussain Pty Ltd, trading as the Cheesecake Shop at Tuggerah in New South Wales (the company). Mr Ahmed alleges that the second respondent and the third respondent, Saqib Khayyam Azam Bhatti, controlled the company and that Mr Bhatti acquired all of the issued capital in the company and took over running its business in 2017. 6 Both the company and Mr Bhatti have filed, at this stage, uninformative defences. Mr Bhatti exercised his privilege against self-exposure to a penalty. On the evidence before me, the company and its business appear to have been controlled by the second respondent for the period between 2014 and at least mid-2017, if not on a continuing basis. However, the sole shareholder and director of the company during the period prior to Mr Bhatti acquiring his shares was the second respondent's wife, Sughra Zahid. She does not appear to have played a material part in the events and is not the subject of any claim, although she was mistakenly named in lieu of the second respondent in the originating application. That has been corrected by orders I made today confirming the substitution of the second respondent in her place in the amended originating application. 7 In substance, Mr Ahmed claims that he was employed by the company, through the second respondent, from early 2014. Early in the employment relationship, Mr Ahmed claims that the second respondent told him that he would cause the company to sponsor a grant of a visa to Mr Ahmed so that he could continue to work and reside in Australia, and that appears to have happened. The evidence suggests that there will be a dispute as to what the agreement involving the sponsorship concerned and whether the second respondent or the company or both adhered to that agreement, which it is unnecessary for me to describe for the purposes of being satisfied whether the applicant has made out a prima facie case in accordance with r 10.43(4)(c) of the Rules. That is because on 20 December 2014, the applicant and Ms Zahid, as managing director of the company, signed an individual flexibility employment agreement engaging Mr Ahmed for four years at 38 hours per week as prescribed by the national employment standard. The agreement provided that for the purposes of calculating Mr Ahmed's pay and leave entitlements, the nominal hours would have the meaning defined in the national employment standard, he would be employed as a pastry cook, and his annual remuneration was fixed at a total of $59,130, including superannuation. The agreement stated that his salary, excluding superannuation, was $54,000 per annum, or a little over $1000 per week. 8 Mr Ahmed's bank statements appear to show that he was paid nowhere near the agreed contractual rate from very shortly after the contract was entered into, and his evidence was that these comprised his only receipts in respect of his work for these periods. Thus, in his Westpac Banking Corporation account, extracts of which are in evidence before me, the following payments appear with the payer and what appears to be the payer's description of their purpose as follows: 04 FEB DEPOSIT MR ZAHID HUSSAIN 280.00 wages week 31 13 FEB DEPOSIT MR ZAHID HUSSAIN 450.00 wages week 32nd 18 FEB DEPOSIT MR ZAHID HUSSAIN 450.00 wages week 33 27 MAR DEPOSIT AL-HUSSAIN PTY LTD 420.00 wages week 38 31 MAR DEPOSIT MR ZAHID HUSSAIN 440.00 wages week 39 9 Those entries appear to show that on one occasion, the company paid what was recorded as $420 for wages for week 38, whereas on the other four occasions the second respondent paid varying amounts of wages for weeks 31, 32 and 33 and 39. But, signally, none of these payments accorded with the contractual entitlement, net of income tax, and they all appear to be somewhere in the order of about half of that sum. 10 That explains that there is a prima facie case for one of two of the pleaded claims in the further amended statement of claim, namely that the company contravened s 323(1) of the Fair Work Act 2009 (Cth) by not paying Mr Ahmed in full the amount payable to him in relation to the performance of work. 11 In the alternative, Mr Ahmed claimed that by failing to pay him the minimum rates of pay prescribed by the general retail industry award, which was alleged to be equivalent, after tax, to $762.20, in lieu of the contractual payment after tax of $842.50, the second respondent contravened ss 45 and 323 of the Fair Work Act by being involved in a contravention of each of those sections. Each is a civil remedy provision within the meaning of s 550(2) of the Act. Given the second respondent's direct involvement in the payment of wages set out earlier in these reasons, I am satisfied that there is a prima facie case on the material before me for that purpose.

Consideration 12 I am satisfied by the evidence to which I have referred that the applicant has established sufficiently a prima facie case within the meaning of r 10.43(4)(c). 13 The proceedings are of a kind mentioned in r 10.42 in that, among others, it is based on a cause of action arising in Australia (item 1), is based on a breach of contract in Australia (item 2), is in relation to a contract made in Australia governed by the law of the Commonwealth, in which Mr Ahmed seeks an order for the enforcement of the contract (in respect of his claim for underpayment of his contractual wages) and or for damages or other relief in relation to a breach of the contract by reason of such underpayment (item 3), and is also a proceeding properly brought against a person who is served, namely the company, in Australia where the second respondent has been properly joined as a party (item 20) - see BY Winddown Inc v Vautin (2016) 249 FCR 262. The Court has jurisdiction in the proceedings by reason of the claims under the Fair Work Act against the company and against the second respondent as being involved in the company's alleged contraventions. 14 I am satisfied by the evidence of Annette van Gent, in her affidavit 11 July 2018, and Mr Ahmed's affidavit of 11 July 2018, that the second respondent is likely currently to be in Pakistan. Ms van Gent proposed originally that only the statement of claim be served by sending a copy of it together with her affidavit by international registered post, with an acknowledgment of receipt to be provided to the applicant to two addresses in Pakistan at which, the evidence suggests, they will come to the second respondent's notice. When the matter first came before me on 13 July 2018, I pointed out that the originating application was the document required to be served pursuant to r 10.43(1), and Mr Ahmed now proposes that that is what will occur, as I intend to order. 15 Ms van Gent's affidavit establishes that Pakistan is a party to the Hague Convention and that the proposed method of service is permitted by Art 10(a), that provides as follows: Provided the State of destination does not object, the present Convention shall not interfere with (a) the freedom to send judicial documents, by postal channels, directly to persons abroad … 16 I am satisfied by Ms van Gent's evidence that Pakistan does not object to service by postal means as permitted pursuant to Art 10(a). Pakistan made a declaration under the Hague Convention that: it has no objection to such service by postal channels directly to the persons concerned (Article 10(a)) or directly through the judicial officers of Pakistan in terms of Article 10(b) of the Convention if such service is recognised by the law of the requesting State. 17 While r 10.01 requires that a document that is to be served personally on an individual must be served by leaving the document with the individual, r 10.23 enables a party to apply to the Court, without notice, for an order that a document is taken to have been served on a person on a date mentioned in the order if it is not practicable to serve the document on a person in a way required by the Rules and the party provides evidence that the document has been brought to the attention of the person to be served. In AIA Australia Ltd v Richards [2017] FCA 84, Allsop CJ, at [13], noted about the Practical Handbook on the Operation of the Hague Service Convention (Permanent Bureau of the Hague Conference on Private International Law, 2006) that: The Practical Handbook states at [196] that "transmission … through postal channels includes service of process upon the addressee". On previous occasions, this Court has granted leave to serve documents by international registered post and considered this to be compliant with Article 10(a): see Deputy Commissioner of Taxation v Power Assets Holdings Ltd (previously known as Hongkong Electric Holdings Ltd) [2013] FCA 708; 96 ATR 51 at [15]-[22] (Gordon J); Deputy Commissioner of Taxation v Cheung Kong Infrastructure Holdings Ltd [2013] FCA 707; 96 ATR 44 at [15]-[22] (Gordon J); Bell v Steele [2011] FCA 1390; 198 FCR 521 at [13] and [16] (Collier J). 18 His Honour said that the Court can grant leave to serve documents by international registered post and he considered that that method of service complied with Art 10(a). 19 I am satisfied that service in the manner proposed (by international registered post with an acknowledgement of receipt to be provided to the applicant) is a method of service permitted by the Hague Convention and by law here. Indeed, in my opinion, the manner of service is appropriately calculated to bring the proceedings to the notice of the second respondent for the purposes of service on him. 20 For these reasons, I will make orders for service as now proposed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.