Australian Competition and Consumer Commission v Safety Compliance Pty Ltd

Rule 10.23 5 An order for deemed service under r 10.23 can be made if the Court is satisfied of two things; first, it must be shown that it is "not practicable" to serve the document on a person in a way required by the Rules. Second, the party seeking the orders must provide evidence that the document has been brought to the attention of the person to be served. The application for the orders may be made "without notice", that is, without serving or advising the other party of the application. 6 Ms Ibrahim's affidavit details the substantial efforts undertaken by the ACCC to secure service of the Orders on Messrs King and Black personally: (1) On 27 January 2016 Ms Ibrahim sent emails, to which the Orders were attached, to the email address used by Mr Black and two email addresses used by Mr King to correspond with the Court and the ACCC thorughout the proceedings. Ms Ibrahim received email delivery confirmation reports from "kingdean8@gmail.com" and "s.black76@hotmail.com". Ms Ibrahim has not received "read receipts" from these emails or contact from either of Messrs King or Black. (2) In addition to sending the emails on 27 January 2016, Ms Ibrahim instructed Advance National Services process servers ("Advance National") to effect personal service of the Orders on the street addresses listed for Messers King and Black on affidavits filed by Southern Gold Coast Lawyers on their behalf on 13 July 2015. On 28 January 2016 (in relation to Mr Black) and 1 February 2016 (in relation to Mr King), Ms Ibrahim received reports from Advance National that they had been unable to effect personal service because Messrs King and Black had left their last known addresses. (3) On 10 February 2016, Ms Ibrahim instructed Advance National to commence location enquiries in relation to Messers King and Black and Mr King's brother, Mr Christopher Kent. (4) On 18 February 2016, Ms Ibrahim received reports from Advance National which indicated that they had undertaken the following searches in relation to each of Messrs King and Black: Australian Electoral Commission records; Integrated Public Number Database (current, historical and reverse facilities); property and rental records; business and company name records; credit related searches; occupational licensing records; civil court records; advanced internet and media coverage; telephone enquiries; correctional services records; public death records; social networking facilities; and other sources. Both reports indicated that Messrs King and Black remained enrolled at the addresses listed in the 13 July 2015 affidavits. Mr King had not been seen at that address for some time and Mr Black's wife indicated that he had not been at his address since August 2015; Mr Black has previously described his relationship with his wife as "estranged". The report in relation to Mr Black identified the email address set out above and the possibility that he was the owner of a property at an address in Ormeau, Queensland. Further inquiries indicated that Mr Black is not the owner of those premises. The report in relation to Mr King identified his association with some companies and businesses but all enquiries failed. (5) On 24 February 2016, Ms Ibrahim instructed Advance National to conduct location enquiries in relation to a woman who is thought to be Mr King's partner. Based on information obtained from that woman, Advance National advised on that day that Mr King was contactable at premises in Bilambil Heights in New South Wales. On 26 February 2016, Ms Ibrahim instructed Advance National to attempt service. On 29 February 2016, Ms Ibrahim was advised that surveillance had been conducted on the premises on 25 and 26 February and although Mr King's suspected partner and her father were sighted, Mr King was not. They further advised that it had not been possible to effect service or make further enquiries because the premises were not occupied at the time the attempt to make service was made. (6) On 4 March 2016, Ms Ibrahim wrote to Mr Delaney of Southern Gold Coast Lawyers, the solicitors for Messers King and Black in these proceedings, indicating that the applicant had been unable to personally serve them with the Orders. The applicant also sought confirmation that the Orders had been brought to the attention of Messers King and Black and requested that Mr Delaney provide the applicant with the last known contact details for each of them. Mr Delaney responded by letter dated 7 March 2016 stating that the Orders were brought to the attention of Messers King and Black by email on 24 December 2015 but that absent their further instructions, he did not have authority to release their contact details.

Personal service "not practical" 7 The ACCC drew my attention to some divergence in opinion as to the standard to be met in determining whether service was "impractical" for the purposes of an order for substituted service under the predecessor of r 10.24 (O 7 r 9 of the Federal Court Rules 1979 (Cth)). In Ricegrowers Co-operative Ltd v ABC Containerline NV (1996) 138 ALR 480; [1996] FCA 1663 at [8], Tamberlin J said that "not practicable" in an English Rule to which he was referred was "essentially identical" in meaning to "impractical" in O 7 r 9 and to establish "impracticality" some attempt, at least, should be made to effect service in accordance with the rules or evidence should be led that it is so obviously futile as to not warrant an attempt at service. 8 In Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2007] FCA 124, Allsop J (as the Chief Justice then was) at [14] expressed a tentative view that the language in O 7 r 9 was wide enough to cover circumstances where service as envisaged by the rules was "not sensible or realistic, even if it is possible or feasible". In Statewide Secured Investments Pty Ltd v Tarrant [2011] FCA 1067 at [9], Flick J expressed the view that in using the phrase "not practicable", r 10.24 did not impose a more constrained standard than its predecessor and he concurred with the tentative view expressed by Allsop J in Humane Society. Rule 10.23 also uses the language "not practicable" and I respectfully endorse those views. 9 In this case, attempts at service have been made at addresses connected with Messrs King and Black and I am satisfied that, having regard to the steps taken to locate them under Ms Ibrahim's direction, it is "not practicable" for service to be effected in a way required by the Rules. This is because it is "not sensible or realistic" to do so, even though with the effluxion of time and further efforts it might theoretically be possible to discover their location and effect personal service.

The Orders were brought to the attention of Messrs King and Black 10 I accept the ACCC's submission that r 10.23(b) is best understood as requiring that a document has been brought to a person's attention, without imposing the additional requirement that the person has accorded it attention or acknowledged it. I accept the reasoning of Dodds-Streeton J in British American Tobacco Australasia Ltd v Taleb (No 1) [2012] FCA 1065 at [46] that to impose the latter requirement would materially reduce the ambit and efficacy of the rule which is characteristically being invoked precisely because service is being evaded or is otherwise difficult. 11 Taking into account (1) Mr Delaney's letter of 7 March 2016, (2) the fact that a copy of the judgment containing the Orders was emailed to Mr Delaney on 22 December 2015 and there is no indication that he did not have instructions to receive the judgment on behalf of Messrs King and Black (Mr Delaney had attended publication of the judgment by telephone), and (3) the fact the Orders were successfully emailed to at least one of the email addresses used by each of Messers King and Black during the proceedings as confirmed by the email delivery confirmations, I am satisfied that the Orders have been brought to the attention of Messers King and Black as contemplated by r 10.23(b).

Conclusion 12 I note that the time for compliance with the Orders for payment of pecuniary penalties has passed. However, I am satisfied on the basis of the evidence that Messrs King and Black are fully aware that the Orders were made. Accordingly, I made the orders for deemed service. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.

SCHEDULE OF PARTIES NSD 547 of 2012 Respondents Fourth Respondent: FIONA ELLEN SCHIMMEL