Australian Pesticides and Veterinary Medicines Authority v Arnica Pty Ltd

JACKSON J: 1 The applicant, the Australian Pesticides and Veterinary Medicines Authority, seeks orders for deemed service of the originating application and two supporting affidavits (Documents) on the third and fourth respondents, Adam Hayes and Diana Hayes. The Documents have already been served at the registered office of each of the first and second respondents, which are corporations. 2 Rule 10.23 of the Federal Court Rules 2011 (Cth) provides: A party may 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: (a) it is not practicable to serve a document on the person in a way required by these Rules; and (b) the party provides evidence that the document has been brought to the attention of the person to be served. 3 The method required by the Rules for service of the originating application is personal service, which in the case of service on an individual means leaving the document with the individual: r 8.06 and r 10.01. 4 In Kosmos Capital Pty Ltd v Turiya Ventures LLC [2019] FCA 528 at [50], I summarised the principles applicable to r 10.23 as follows: In the context of r 10.23(a), the word 'practicable' has a wide meaning which will depend on the circumstances of the particular proceeding: Australian Securities and Investments Commission v China Environment Group Ltd [2013] FCA 286 at [11]-[15]. Rule 10.23 does not require the applicant to prove the impossibility of service of documents upon a party in accordance with the rules, or that further attempts to effect service in accordance with the rules would be futile or not sensible or feasible: Speedo Holdings B.V. v Evans [2011] FCA 1089 at [12]. The question is not whether reasonable effort has been shown by the applicant over a particular period, but whether at the date on which the application regarding service is made, the applicant, using reasonable effort, is unable to serve the respondent personally: Foxe v Brown [1984] HCA 69 at [16]; (1984) 58 ALR 542 at 547 as applied in O'Neil v Acott (1988) 59 NTR 1 at 2. Evidence of attempts to serve, attempts to speak by telephone and lack of knowledge of whereabouts will be relevant to the question of practicability: see eg Ross v Cotter [2015] FCA 310 at [2]. 5 The applicant relies, in particular, on four affidavits sworn by a process server, Graeme Coates. Mr Coates's evidence may be summarised as follows: (1) He was instructed to serve the Documents, along with a covering letter, on Mr and Ms Hayes on 31 August 2021. He was given an address in Leederville, which is shown on company searches for the corporate respondents as the residential address of each of Mr and Ms Hayes. (2) Between 1 September 2021 and 13 October 2021, Mr Coates went to the Leederville address on more than 10 occasions and knocked on the door to try to effect service. No one answered the door. On some of these occasions, there was a car in the car port. On other occasions, there were lights on and sounds of people inside. On most of the occasions, according to Mr Coates, there were dogs barking inside the unit. (3) On 1 September 2021 Mr Coates put a letter in the letterbox at the Leederville address requesting an appointment with Mr and Ms Hayes to effect service. There has been no response to that letter. (4) On several occasions, Mr Coates also went to a shop associated with the respondents, or telephoned the shop, but Mr and Ms Hayes were never there. Mr Coates left a message on the 1-300 telephone number at the shop which can be found on the internet. (5) On 9 September 2021 when Mr Coates went to the Leederville address he found the following notice affixed to a wall to the left of the front door: To all that it concerns NOTICE TO THE AGENT IS NOTICE TO THE PRINCIPAL; NOTICE TO THE PRINCIPAL IS NOTICE TO THE AGENT Notice of Removal of Implied Right of Access. You are advised to read the following notice thoroughly and carefully. It is a lawful notice. It informs you. It means what it says. I hereby give notice that the implied right of access to the property known as, Parkview Gardens, 9 Brentham Street, Leederville, WA 6007, Australia and surrounding areas, have been removed, along with all associated property including but not limited to any private conveyance in respect of the following: 1. ANY employee principal-agent third party or representative or any other acting on behalf of or instruction of HER MAJESTY'S COURT SERVICE or any other CORPORATE BODY (ie company) however named and, 2. ANY POLICE OFFICER who is acting for the CORPORATE POLICE and NOT acting as a constable for and on behalf of Her Majesty Queen Elizabeth II and has expressed in the oath of office to serve 'With fairness, integrity, diligence and impartiality, upholding fundamental human rights and according equal respect to all people; and that I will to the best of my power, cause the peace to be kept and preserved and prevent all offences against people and property.' COMMON LAW JURISDICTION APPLIES EXCLUSIVELY Please also take notice that the land known as England is a Common Law Jurisdiction and any transgression of this notice will be dealt with private prosecution [sic] according to, and under, common law. Any and all access to the above mentioned property shall be by strict invitation only and shall be subject to terms and conditions which are available by written request. (6) On 13 October 2021, the last occasion on which Mr Coates attended the Leederville address, he gained access to the back fence via a park. He saw two people in the back garden. One he recognised as Ms Hayes, from her Facebook page. The other was a man whom Mr Coates judged to be in his mid-50s, which matches Mr Hayes's age as disclosed in company searches. The woman went straight inside on seeing Mr Coates. The man stayed in the back yard for a short time. Mr Coates asked him whether he was Adam James Hayes. The man replied 'I've never heard of him, no, I don't know him'. When Mr Coates challenged him on this, the man went inside. Mr Coates dropped the Documents over the fence and called out to each of Mr and Ms Hayes that they had been served. 6 Subject to one reservation, this is ample evidence that it is impracticable to serve Mr and Ms Hayes with the Documents. It is clear that they are making efforts to avoid being served. There is evidence that they live at the Leederville address. People have been at that address at various times and not come to the door. An intention on the part of those in control of the property not to be served with the Documents can be inferred from the notice which Mr Coates saw on 9 September. In making that factual inference, it is not necessary to decide whether the notice was legally effective to deny permission to Mr Coates to enter the premises, nor whether the notice correctly describes the legal relationships it purports to identify or is based on a correct understanding of the reach of the common law of England. 7 The reservation I need to mention is that it is arguable that Mr and Ms Hayes have been personally served, on the occasion when Mr Coates dropped the Documents over the back fence of the Leederville property. That conclusion would be inconsistent with the finding that service was impracticable. But on balance, and despite Mr Coates's strenuous efforts, I would not find that personal service under r 10.01 has been effected. It is not clear from the evidence whether Mr Coates dropped two bundles, each containing a set of the Documents, over the fence. Although he refers to 'her copy of the court Documents' in relation to Ms Hayes, he just refers to 'the said documents' in relation to Mr Hayes. The covering letter he annexes in respect of each of Mr and Ms Hayes is only addressed to Mr Hayes. Also, there is room for doubt, at least, about whether the man in the back garden was Mr Hayes. And it is doubtful whether the Documents have been left with any person, as it appears that both of the individuals had left the back garden by the time the Documents were dropped into it. 8 Rule 10.12(1) of the Federal Court Rules is relevant in that regard, in that it provides that if a person refuses to accept a document that is required to be served personally, it is taken to have been served personally if the person serving the document puts it down in the individual's presence and tells the individual what it is. Without suggesting that the rule sets out a necessary condition for finding that the Documents have been served personally, it is doubtful, on Mr Coates's evidence, that the sufficient condition which it does set out has been satisfied here. 9 Nevertheless, it is evident on the face of the events I have described above that there is ample basis to conclude both that it is impracticable to serve the Documents on Mr and Ms Hayes personally, and that the Documents have been brought to their attention. Orders for deemed service will be made. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson.