Electoral Commissioner of the Australian Electoral Commission v Fisher

1. The applicant's interlocutory application seeking orders for substituted service is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RANGIAH J: 1 The applicant seeks orders allowing substituted service of the originating application and accompanying documents (the originating documents) upon the respondent. 2 The applicant initially filed an interlocutory application seeking a form of declaration that it was not practicable to serve the originating documents personally on the respondent and an order requiring the applicant to take certain steps to bring those documents to the respondent's attention. The application seemed to me to be unorthodox and was unsupported by any written submissions. I gave the applicant leave to file an amended interlocutory application and written submissions, and indicated I would decide the application on the papers. 3 I have concluded that the application for substituted service should be dismissed. These are my reasons. 4 The applicant's amended interlocutory application seeks orders allowing service on the respondent by: sending the originating documents to two email addresses; sending a link to the documents to a mobile telephone number; and posting the originating documents to a residential address. 5 Rule 8.06 of the Federal Court Rules 2011 (Cth) (the Rules) requires personal service of an originating application and of each other document required (by r 8.05) to accompany the originating application. 6 Rule 10.24 of the Rules provides: Substituted service 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. 7 The Court must be satisfied that it is not practicable for the applicant to effect personal service of the originating documents; and that the proposed alternative means of service will, in all reasonable probability, bring the documents to the respondent's attention: Commissioner of Taxation v Caratti (No 2) [2018] FCA 1500 at [10]; Commissioner of Taxation v Zeitouni (2013) 306 ALR 603 at [84]. 8 For the purposes of r 10.24, the expression "not practicable" does not mean impossible or futile: Electrolux Home Products Pty Ltd v Delap Impex Ltd [2013] FCA 600 at [76]; Commissioner of Taxation v Zeitouni at [66]. 9 In Commissioner of Taxation v Caratti (No 2), Colvin J observed at [10]: 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. 10 The applicant has identified, through its own records and those of the Australian Taxation Office, four possible residential addresses, four possible email addresses and two possible telephone numbers for the respondent. I am satisfied that, despite making reasonable efforts, the applicant has not been able to identify any other addresses or means of contacting the applicant. 11 The applicant's evidence demonstrates that attempts have been made to personally serve the respondent at three of the four identified residential addresses, but the process servers were ultimately unable to locate the respondent. Their enquiries suggest that the respondent does not currently live at any of those addresses. 12 There is a fourth possible address for the respondent in Doncaster, Victoria. That address is recorded by the Australian Tax Office as the respondent's last known residential address. The applicant's evidence does not indicate that any attempts have been made to personally serve the respondent at that address, nor has the applicant explained why service has not been attempted there. In the absence of any such explanation, I am not satisfied that it is not practicable to personally serve the originating documents on the respondent. 13 Even if I were satisfied that personal service on the respondent is not reasonably practicable, it would be necessary to consider whether the proposed methods of substituted service would, in all reasonable probability, bring the originating documents to the attention of the respondent. 14 The applicant submits that there is evidence indicating that the respondent is receiving post sent to an address in Pimpama, Queensland. That address was given by the respondent as his residential and postal address in a nomination form for the 2022 Federal election. On 27 October 2023, the applicant sent the originating documents by registered post to that address. Australia Post's records show that the documents were delivered on 31 October 2023. It appears that someone at the Pimpama address signed for the documents. 15 However, on 6 December 2022, an occupant of the Pimpama address had informed a process server that the respondent was not at the Pimpama address and was not known to the occupant. There is no evidence that it was the respondent who signed for the documents, nor that he currently resides there. I am not satisfied that again posting the originating documents to that address is likely to bring the documents to his attention. 16 The applicant has sent emails to the four email addresses believed to be associated with the respondent. Two resulted in "delivery failure notifications", but the others did not. 17 The email address for which there were no "delivery failure notifications" were a gmail address commencing with "d.fisher.nsw" and another a gmail address beginning with "personaltradie". The applicant's submissions state that it, "believes [these email addresses] belong to the Respondent and are still active", and that documents delivered to those email addresses are likely to come to the respondent's attention. 18 An inference can be drawn that the emails were delivered to someone. However, it is not obvious that either email address is associated with the respondent. The first email address consists of a not uncommon initial and surname and the letters "nsw", whereas the attempts at service were made in Queensland and the respondent's other possible residential address is in Victoria. The second active email address does not, on its face, disclose any connection with the respondent. Apart from merely asserting that the email addresses were obtained from records held by the applicant and the Australian Tax Office, the applicant has not explained why the email addresses are believed to be associated with the respondent. 19 On the evidence presently available, I am not satisfied that either of the two active email addresses is probably the respondent's email address. I am not satisfied that service of the originating documents by email at the two email addresses would probably bring the documents to the attention of the respondent. 20 An officer of the applicant was able to speak to the respondent on 25 August 2022 by ringing a mobile telephone number provided by the respondent in his nomination form for the 2022 Federal election. That number remains connected. The applicant has sent text messages to that number and left voice messages, but they have not been responded to. 21 An inference that the respondent continues to receive messages at the mobile telephone number may be available. However, the only clear and direct communication with the respondent at that number occurred some 18 months ago. There is no direct evidence, such as responses to text messages, indicating that he continues to use the same number. I am not satisfied that a link to the originating documents sent to the mobile telephone number would probably bring the documents to the respondent's attention. 22 As I am not satisfied that personal service on the respondent is not reasonably practicable, nor that any of the alternative modes of service proposed by the applicant would probably bring the originating documents to the attention of the respondent, the application for substituted service must be dismissed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah.