Fair Work Ombudsman v DTF World Square Pty Ltd

KATZMANN J: 1 DTF World Square Pty Ltd is one of a number of related entities operating restaurants in Australia under the "Din Tai Fung" brand. Selden Farlane Lachlan Investments Pty Ltd is another. In proceedings commenced on 17 June 2020 the Fair Work Ombudsman alleges that the two companies contravened the Fair Work Act 2009 (Cth) (FW Act) in multiple respects: by failing to pay minimum rates of pay, casual loadings, penalty and overtime rates, and shift allowances; by asking employees to work unreasonable additional hours, and by making or keeping records and providing payslips which they knew to be false or misleading. The Ombudsman also alleges that three individuals - Dendy Harjanto, Hannah Handoko and Sinthiana Parmenas - were accessories to those contraventions in that, through their acts or omissions, they aided, abetted, counselled or procured and/or were knowingly concerned in, or party to, them. The two corporate respondents have been served with the originating application and statement of claim (originating documents). Despite her best endeavours, however, the Ombudsman has been unable to have any of the three individuals personally served. 2 By two separate interlocutory applications filed on 31 July 2020 the Ombudsman seeks orders for leave to serve the originating documents on Mr Harjanto in Singapore pursuant to r 10.43(2) of the Federal Court Rules 2011 (Cth) and for deemed service of the originating documents on Ms Handoko and Ms Parmenas. 3 The applications are supported by affidavits from Claire Toner, a lawyer employed by the Ombudsman, and several process servers. Ms Toner also gave some brief oral evidence.

The application for service outside the jurisdiction

The relevant rules 4 Rule 10.42 relevantly provides that, subject to r 10.43, an originating application may be served on a person in a foreign country in a proceeding that consists of, or includes, any one of more of the kinds of proceeding mentioned in the table to the rule. Relevantly, that includes a proceeding based on a cause of action arising in Australia. 5 Rule 10.43 relevantly provides as follows: 10.43 Application for leave to serve originating application outside Australia (1) Service of an originating application on a person in a foreign country is effective for the purpose of a proceeding only if: (a) the Court has given leave under subrule (2) before the application is served; or (b) the Court confirms the service under subrule (6); (c) the person served waives any objection to the service by filing a notice of address for service without also making an application under rule 13.01. (2) A party may apply to the Court for leave to serve an originating application on a person in a foreign country in accordance with a convention, the Hague Convention or the law of the foreign country. (3) The application under subrule (2) must be accompanied by an affidavit stating: (a) the name of the foreign country where the person to be served is or is likely to be; and (b) the proposed method of service; and (c) that the proposed method of service is permitted by: (i) if a convention applies - the convention; or (ii) if the Hague Convention applies - the Hague Convention; or (iii) in any other case - the law of the foreign country. (4) For subrule (2), the party must satisfy the Court that: (a) the Court has jurisdiction in the proceeding; and (b) the proceeding is of a kind mentioned in rule 10.42; and (c) the party has a prima facie case for all or any of the relief claimed in the proceeding. ….. The reference to the Hague Convention is a reference to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (done at The Hague on 15 November 1965): r 10.41. 6 Practice Note GPN-OSE provides that applications for leave to serve court documents (including originating process) on a person in a foreign country under Div 10.4 of the Rules should support the application with evidence of information obtained from the Private International Law Section of the Commonwealth Attorney-General's Department as to the appropriate method of transmitting documents for service in that country. That evidence is to include whether documents: (1) should be transmitted in accordance with an international agreement or arrangement and the details of that agreement or arrangement; (2) should be transmitted for service via the diplomatic channel; or (3) may be transmitted for service by a private agent within the territory of that country.

The affidavits in support of the application 7 In support of the application, the Ombudsman relied on Ms Toner's affidavits, supplemented by her oral testimony, as well an exchange of emails with the Private International Law Section of the Attorney-General's Department. 8 Ms Toner's affidavit evidence discloses that Mr Harjanto left Australia on 30 December 2019 and has not returned. Searches of the ASIC database conducted by Ms Toner reveal that Mr Harjanto was born in Indonesia and that he had and/or has two overseas addresses, one in Jakarta and one in Singapore. I am not satisfied that Mr Harjanto is currently in Singapore, but Ms Toner's affidavit evidence, based on information conveyed to her by a former employee of DTF upon which she expanded in her oral evidence, persuades me that it is likely that he is there. 9 Evidence supplied to Ms Toner from the Private International Law section of the Attorney-General's Department indicates that there is currently no convention, treaty or other agreement in force between Australia and Singapore on the service of documents in civil proceedings. Ms Toner received advice from KC Lye, a partner of Norton Rose Fulbright Asia practising in Singapore, that, since there is no civil procedure convention in place between Australia and Singapore, there are two ways in which proceedings commenced in this Court can be served personally on a defendant (or respondent) in Singapore. They are either by means of the Singapore Court's process server pursuant to a letter of request from a foreign court or tribunal in accordance with order 65, rule 2 of the relevant rules of court or by a method of service authorised by those rules for the service of an analogous form of process issued by the Singapore courts, that is, in the manner in which a Singapore-issued originating process should ordinarily be served in accordance with order 65, rule 2A of those rules. Mr Lye observed that the most straightforward method would be the second of the two methods. That is the method by which the Ombudsman seeks to serve Mr Harjanto. That method is supported by the information Ms Toner received from the Attorney-General's Department which indicates that, depending on the country, the average time for requests to be processed and for service to be effected in a foreign country is approximately four to six months and, in the context of the current pandemic, there are likely to be delays if service were to be effected through diplomatic channels.

Does the Court have jurisdiction in the proceeding? 10 The proceeding concerns a matter arising under the FW Act. Jurisdiction is conferred on the Court in such a matter both by s 39B(1A)(c) of the Judiciary Act 1903 (Cth) and s 562 of the FW Act.

Is the proceeding of a kind mentioned in rule 10.42? 11 As indicated earlier, it is. That is because the proceeding is based on contraventions of the FW Act allegedly committed in Australia (item 12) and also because it relates to the enforcement of the Act (item 14) and it seeks relief under the Act (item 15).

Does the applicant have a prima facie case for all or any of the relief claimed in the proceeding? 12 A prima facie case for relief is made out if, on the material before the court, inferences are open which, if translated into findings of fact, would support the relief claimed: Ho v Akai Pty Ltd (in liq) (2006) 247 FCR 205 at [10] (Finn, Weinberg and Rares JJ). It is well-established that a substantial inquiry is not called for. 13 Mr Harjanto is alleged to be an accessory to the alleged contraventions, as I mentioned earlier. Ms Toner's evidence shows that Mr Harjanto was a director of both corporate respondents at the time of the alleged contraventions and a signatory to at least one of their bank accounts. It also indicates, at least on a prima facie basis, that he had intimate knowledge of the companies' operations with respect to the Din Tai Fung business and that he was aware that staff had been underpaid. Nevertheless, it is unnecessary for the Ombudsman to demonstrate that she has a prima facie case for the relief claimed against Mr Harjanto; it is sufficient if she can show that there is a prima facie case for any of the relief claimed against another party already before the Court: BY Winddown, Inc v Vautin (2016) 249 FCR 262 at [39]-[52] (Besanko, Middleton and Griffiths JJ); Watson v Kriticos (Joinder and Service Applications) [2020] FCA 1019 (Perram J). 14 For this purpose the Ombudsman elected to rely on some evidence supporting the allegations made in paras 38 and following of the statement of claim, namely that the two corporate respondents knowingly made or kept false or misleading records in contravention of reg 3.44(1) of the Fair Work Regulations 2009 (Cth) and s 535(4) of the FW Act. Each of these provisions is a civil remedy provision, which means, if proved, both declaratory relief and the imposition of pecuniary penalties would be justified. 15 I am satisfied, based on the evidence in Ms Toner's second and third affidavits to which I was taken at the hearing and which is summarised in the Ombudsman's written submissions, that there is a prima facie case for at least some of the relief claimed in the proceeding.

Conclusion 16 For all these reasons, I am persuaded that the order the Ombudsman seeks should be made. While the Court has a discretion to refuse to do so, there is no apparent reason why it should be exercised in this case.

The application for deemed service 17 Without notice, a party may apply to the Court for, and the Court may make, an order that a document is taken to have been served on a person on the date mentioned in the order if: (a) it is not practicable to serve a document on the person in a way required by the Rules; and (b) the party provides evidence that the document has been brought to the attention of the person to be served. See rr 10.23; 1.41.

Personal service is not practicable 18 In Electrolux Home Products Pty Ltd v Delap Imprex Ltd [2013] FCA 600; 103 IPR 421 at [72]-[81] I discussed the meaning of "not practicable" in the context of r 10.24, which deals with substituted service where a similar condition is imposed, and adopt what I said there. In summary, while mere inconvenience is not enough, "not practicable" does not mean not possible or futile. It is sufficient that personal service cannot be effected using the available means or after a number of unsuccessful attempts. What is not practicable will vary according to the circumstances of the case. Consequently, where there is no realistic way of discovering the location of the respondent, personal service has been considered not practicable: Commissioner of Taxation v Zeitouni [2013] FCA 1011; 306 ALR 603; 138 ALD 294; 97 ATR 619 (Katzmann J); Titan Enterprises (Qld) Pty Ltd v Cross [2016] FCA 664 (Edelman J). The need for speed and efficiency may render personal service impracticable, such as where the claim in question is for urgent interlocutory relief: see generally Zeitouni at [62]-[86]. 19 Furthermore, s 37M(3) of the Federal Court of Australia Act 1976 (Cth) requires the Court to exercise its power in the way that best promotes the overarching purpose of the civil practice and procedure provisions, which is to facilitate the just resolution of disputes according to law and as quickly, inexpensively, and efficiently as possible. It follows that considerations of efficiency and cost, as well as the speedy resolution of proceedings, will influence the determination of what is "not practicable". 20 More than six weeks have lapsed since the proceedings were instituted. 21 The evidence establishes that, notwithstanding numerous attempts by numerous process servers on numerous occasions, personal service of the originating documents on Ms Handoko and Ms Parmenas has not been successful. On 1 and 2 July 2020 and on 14 and 15 July 2020 attempts were made to serve them at the registered office of DTF where they were known to have worked. Five attempts were made last month to serve Ms Handoko at the Chatswood Din Tai Fung Restaurant where she was understood to work at times. On 13, 14 and 15 July 2020 attempts were made to serve Ms Handoko at the address, which on 9 December 2019 she had indicated in an incoming passenger card was her residential address in Australia and which as recently as 6 March 2020 was listed in ASIC records as her home address. 22 On eight different occasions last month process servers attended the address designated by Ms Parmenas on 3 January 2020 on an incoming passenger card as her residential address in Australia. A title search undertaken as recently as 29 July 2020 discloses that Ms Parmenas is a joint owner of this property. 23 It is a fair inference from all the evidence, including Ms Toner's emails, text and voicemail messages to the two women, that they are evading service. 24 In all the circumstances and having regard to all the evidence, I am satisfied that personal service is not practicable.

The Ombudsman has provided evidence that the documents have been brought to the attention of the respondents 25 I am also satisfied that the originating documents have been brought to the attention of both Ms Handoko and Ms Parmenas. On 23 July 2020 Ms Toner sent text messages to mobile telephone numbers which she had previously used to communicate with them, providing Dropbox links to the originating documents. On 13 July 2020 copies of the documents were mailed to Ms Handoko's home address by express post. The documents were successfully delivered at 1.58pm on 15 July 2020 and were not returned to sender. 26 On 13 July 2020 the originating documents were also sent by express post to Ms Parmenas' last known residential address. The documents were successfully delivered to that address at 3pm on 15 July 2020. In the Ombudsman's original interlocutory application she sought an order that the originating documents be deemed to have been served on 17 July 2020. The basis for the proposed order was that r 10.32 relevantly provides that a document that is served on a person by pre-paid post addressed to the person at the person's proper address is taken to be served on the person on the fourth business day after the document was sent. 27 On 3 August 2020, Ms Toner received the express post envelope addressed to Ms Parmenas containing the originating documents, marked "Return to Sender". As the Ombudsman submitted, while at first blush this suggests that Ms Parmenas no longer lives at that address, that notation is far from conclusive. As I mentioned earlier, the evidence shows that Ms Parmenas owns the property to which the documents were sent or is an owner of the property to which the documents were sent. The sticker apparently applied by Australia Post indicates that the reason why the documents were served is unknown. There is no indication that the addressee had left the address or refused to accept the package. Besides, as the Ombudsman pointed out in her written submissions, the Court need not be satisfied that Ms Parmenas acknowledged receipt of the originating documents, given attention to them, let alone read or understood them: British American Tobacco Australasia Limited v Taleb (No 1) [2012] FCA 1065 at [46] (Dodds-Streeton J). 28 For more abundant caution, however, by an amended interlocutory application the Ombudsman sought an alternative order that they were brought to the attention of Ms Parmenas by an email Ms Toner sent to her personal email address on 7 July 2020. That is the email address recorded by Ms Parmenas on her incoming passenger card when she returned to Australia after a holiday in New Zealand on 3 January 2020. 29 In the email Ms Toner informed Ms Parmenas that on the previous day she had tried to email her at her Din Tai Fung email address without success. She went on to advise that, further to her 29 June 2020 email, in which she had notified Ms Parmenas that the Ombudsman had commenced proceedings against her, she was attaching to the email the originating application and the statement of claim which the Ombudsman had filed in the proceedings. 30 While she sought a response or confirmation that the email had been received, no response or confirmation was provided. Nevertheless, no bounce-back message was received and I am satisfied, on the balance of probabilities, that Ms Parmenas received that email and the attached documents. For completeness, I observe that on 15 July 2020, after Ms Toner had again emailed Ms Parmenas, she received from that email account a response stating "this email is no longer in use". It seems unlikely that that email was automatically generated. Indeed, it is more likely to have been sent by Ms Parmenas or someone on her behalf. Be that as it may, this response does not detract from the fact that the email attaching the originating documents was sent and received on 7 July 2020.

Conclusion 31 For all these reasons, I am satisfied that orders for deemed service should be made in relation to Ms Handoko and Ms Parmenas, in Ms Handoko's case on the basis that she was served by express post at her last known residential address and in Ms Parmenas' case on the basis that she was served by email at her email address on 7 July 2020. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Katzmann.

SCHEDULE OF PARTIES NSD 669 of 2020 Respondents Fourth Respondent: HANNAH HANDOKO Fifth Respondent: SINTHIANA PARMENAS