1. The Osteopathy Board of Australia (the Board) applied for interim orders permitting it to serve its application on the respondent, who is residing overseas, by sending it to him by post and email.
2. For the reasons which follow, I have decided that the Tribunal has power to make orders for substituted service on the respondent and that it is appropriate to do so in this case.

1. The respondent, Mr Daniele Caminiti, is an Italian citizen. In 2022, Mr Caminiti was practising as an osteopath in Canberra and held provisional registration with the Board.
2. Following a complaint about Mr Caminiti, the Board suspended Mr Caminiti's registration on 11 May 2022.
3. On 28 March 2024, the Board referred a matter about Mr Caminiti to the Tribunal under section 193 of the Health Practitioner Regulation National Law (ACT) (National Law). The Board alleges that, in 2022, Mr Caminiti behaved in a way that constituted professional misconduct.
4. Material provided to the Tribunal by the Board suggests that Mr Caminiti is currently practising as an osteopath in Italy. The Tribunal is satisfied, based upon the evidence provided by the Board, that he is practising at two locations in Italy.

1. On 20 June 2024, the Board applied to serve the application on Mr Caminiti by email and by post to the two addresses where he practises.
2. Rule 134(3) of the ACT Civil and Administrative Tribunal Procedures Rules 2020 (the Rules) provides that an applicant for disciplinary action (such as the Board) must personally serve a sealed copy of the application on each respondent. Rule 134(4) provides that the application must not be served by post.
3. Rules 25(1) and (2) of the Rules (read together) provide that, if a document is required to be served in a particular way, the Tribunal may order that the document is to be served in another way. Pursuant to rule 25(4):

_The tribunal may make the order if satisfied that - _

(a) it is impractical or not possible, for any reason, for the document to be served in the prescribed way; and

(b) the substituted way is reasonably likely to bring the document to the attention of the person to be served.

1. Pursuant to rule 25(6) of the Rules, the Tribunal may make an order for substituted service even though the person to be served is not in the ACT or Australia or was not in the ACT or Australia when the proceeding started.
2. The Tribunal may, by order, dispense with the application of a provision of the rules to a particular proceeding on any conditions it considers appropriate.[1]

Does the Tribunal have personal jurisdiction over the respondent?

1. There is no doubt that the Tribunal has subject matter jurisdiction to hear and determine the proceedings against Mr Caminiti. It is pertinent to consider, however, whether it has personal jurisdiction over him;[2] that is, whether he is amenable to the process of the Tribunal.
2. At common law, the jurisdiction of a court in an action in personam depends upon the defendant being answerable or amenable to the command of the writ. The defendant's amenability depended primarily upon the defendant's presence in the jurisdiction.[3] In The Vrontados [1982] 2 Lloyd's LR 241, Lord Denning MR said at 245:

service of a writ out of the jurisdiction is an exercise of sovereignty within the country in which service is effected. It can only be done with the consent of that country.

1. In Flaherty v Girgis [1987] HCA 17; (1987) 162 CLR 574 at 599, Brennan J stated that "[a]t common law, extraterritorial service of a writ of summons in a personal action is a nullity." Further, as observed by four members of the High Court in Zurich Insurance Co Ltd v Koper, "the amenability of a person to the service of process" is generally "a precondition to the making of a binding adjudication in a legal proceeding to which that person is a party."[4]
2. Macaulay J helpfully set out the relevant principles in Andrianakis v Uber Technologies (Ruling No 1) [2019] VSC 850 at [197]:

(a) At common law, absent the defendant's submission to jurisdiction, civil jurisdiction is territorial, that is to say, related to the territory of whose system of government the particular court forms part.

(b) Aside from actions in rem, the ordinary basis of territorial jurisdiction is the personal presence of the defendant within the courts territory.

(c) The usual method by which a court asserts such jurisdiction is the issue (or issue and service) of its writ directed to the defendant.

(d) Because the effective assertion of jurisdiction is confined by the limits of actual jurisdiction, a court's power to issue process in an action in personam is prima facie exercisable only against those present within the limits of its territory (at either the time of issue or the time of service).

(e) A court cannot extend its process and so exercise sovereign power beyond its own territorial limits: conversely, a court's power to authorise service of its writ is ordinarily a measure of its jurisdiction in an action in personam.

(f) A statutory conferral of power upon a court to order service of its process outside its territory will ordinarily be construed as carrying with it an implied grant of jurisdiction to entertain an action, of which it is otherwise cognizant, against the person served: whenever a defendant can be legally served with a writ, then the court, on service being effected, has jurisdiction to entertain an action against him.

(g) Thus, a (statutory) conferral upon a court of a power to order service outside its territory will provide the basis of 'an extension of jurisdiction'. This extension is sometimes called 'the long arm' jurisdiction of a court.

(h) The question whether a court possesses the actual power to make an order for service outside its territory is not a mere matter of the practice or procedure observed by the particular court in the exercise of its jurisdiction. The exercise of an actual power to order service outside territorial jurisdiction is a component and a measure of jurisdiction itself.

1. The common law limitations on service outside jurisdiction have largely been modified by statute. The Service and Execution of Process Act 1992 (Cth) provides for the service of documents in other jurisdictions within Australia. The Trans-Tasman Proceedings Act 2010 (Cth) provides for service of documents in New Zealand. Generally, rules of court provide for service of documents in other overseas countries.[5] As Justice Macaulay observed:

courts may take extraterritorial jurisdiction, through service of the court's originating process outside the territorial bounds of the court's jurisdiction, pursuant to power conferred directly under statute or by rules of court made pursuant to statutory power.[6]

1. There is a question as to whether the common law principles concerning the amenability of a defendant to a court's jurisdiction apply to bodies other than courts, or at least to bodies which are not exercising judicial power. The better view is that the Tribunal is not exercising judicial power when hearing and determining a matter about a registered health practitioner under the National Law.[7] As the Northern Territory Civil and Administrative Tribunal concluded in Nursing & Midwifery Board of Australia v Finau [2021] NTCAT 1 at [18]- [19], a tribunal exercising a professional disciplinary jurisdiction under section 193 of the National Law is exercising an administrative function.
2. In Re The Maritime Union of Australia; Ex parte CSL Pacific Shipping Inc [2003] HCA 43, a party (being an employer) objected to the jurisdiction of the Australian Industrial Relations Commission (AIRC) exercising powers under the Workplace Relations Act 1996 (Cth) to vary an award. The proposed variation added the employer's name to a schedule of the award. The employer argued that the AIRC had no jurisdiction when the employer had no presence in Australia.
3. The High Court rejected the argument as to the applicability of the common law principle that courts have jurisdiction in personal actions if the defendant is served with the court's originating process within the territorial bounds of the court's jurisdiction. The Court (Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ) accepted the opinion of the Full Bench of the AIRC that jurisdiction under the Workplace Relations Act 1996 (Cth) was:

not dependent or conditioned upon formal or actual service of process. Rather, jurisdiction arises from an objectively established state of affairs between participants in employment and industrial relationships. That is not to deny that the exercise of jurisdiction may be precluded where procedural fairness is not accorded for reasons that include a failure to adequately notify or serve process.[8]

The AIRC was not concerned with the exercise of judicial power where, as identified in Pfeiffer, the assertion of jurisdiction in personal actions depends upon the legal service of the initiating process. Rather, its powers are of a legislative rather than judicial nature, being concerned with the prescription of rules of conduct for the future in respect of the disputing parties.[9]

1. As the AIRC's rules permitted service overseas, and there had been no denial of procedural fairness by a failure adequately to notify or serve process, the AIRC had jurisdiction to hear the application to vary the award.
2. In Battenberg v Restrom [2006] FCAFC 20, the Full Federal Court rejected the argument that the principles in Laurie v Carroll,[10] concerning the jurisdiction of a court when a defendant is not in the jurisdiction, applied "to the administrative issue and service of a bankruptcy notice."[11]
3. It may be that the common law principles concerning service apply to the Tribunal when determining civil disputes (subject to any modification of those principles by legislation or the Rules).[12] However, it follows from the authorities discussed above that the common law principles concerning service upon a defendant outside the jurisdiction do not apply to the Tribunal when it is exercising a disciplinary function. The Tribunal's jurisdiction in this case thus depends primarily upon a valid referral being made to the Tribunal under section 193 of the National Law (which is not in issue) and possibly also upon the Tribunal having authority under the Rules to authorise service upon the respondent overseas.[13]
4. As indicated above, rule 25(6) of the Rules expressly contemplates service outside Australia. It provides:

The tribunal may make an order under subrule (2) even though the person to be served is not in the ACT or Australia or was not in the ACT or Australia when the proceeding started.

1. Accordingly, the Tribunal has power, in circumstances provided for by the Rules, to make an order for substituted service under rule 25(2) of the Rules on a respondent who is outside Australia.

Are the conditions for the exercise of the power fulfilled?

1. The tribunal may make an order for substituted service if satisfied that -

(a) it is impractical or not possible, for any reason, for the document to be served in the prescribed way; and

(b) the substituted way is reasonably likely to bring the document to the attention of the person to be served.[14]

1. In Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2007] FCA 124, Allsop J considered that one meaning of "impractical," in the context of a similar rule about service, may be that "service through the method provided for by following the Rules is not sensible or realistic, even if it is possible or feasible."[15] That approach has been adopted in other cases[16] and I consider that it applies to the meaning of "impractical" in rule 25(4) of the Rules.
2. It is not sensible or realistic for the application to be personally served on Mr Caminiti, as required by rule 134(3) of the Rules, in circumstances where the evidence indicates that he is living in Italy and where this may cause substantial delay. I am accordingly satisfied that it is impractical for that document to be served in the prescribed way.
3. I am also satisfied that serving the application by post to the addresses of the apparent places of business of Mr Caminiti, and by emailing it to him, is reasonably likely to bring the application to his attention. Both addresses are listed for his practice's website and one of them is listed on his practice's Facebook page. Both are listed on the Registro Degli Osteopati D'Italia website. The Registro Degli Osteopati D'Italia, a voluntary association for osteopaths in Italy, confirmed in an email to the Board on 18 July 2024 that Mr Caminiti is "present" at both addresses. Mr Caminiti's email address is listed as the contact address on his practice's website and Facebook page.
4. It remains to consider whether, in my discretion, I should make an order for substituted service by way of email and post. I am satisfied that it is appropriate to make an order for substituted service. The proceedings have been brought for the protection of the public and it is important, as a matter of procedural fairness, to notify the practitioner of the proceedings. Where personal service would be impractical, it is appropriate that the respondent be served in another way.
5. One other possible form of service is in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965 (the Hague Convention). Italy and Australia are both parties to that convention. The Hague Convention provides a series of methods by which documents may be served from one contracting State to another.
6. It is not entirely clear whether the Hague Convention applies to the service of an originating process in disciplinary proceedings in the Tribunal. Even if it does, however, I accept the Board's submission that service under the convention is likely to cause significant delay and is not more likely to successfully bring the application to Mr Caminiti's attention than the methods of service proposed by it. In exercising its functions under the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), the Tribunal is required to seek to ensure its procedures are as simple, quick, inexpensive and informal as is consistent with achieving justice.[17] Service by post and email, rather than by utilising the procedures of the Hague Convention, is most consistent with this principle.[18]

1. The Board applied for an order, under section 23(2) of the ACAT Act, dispensing with the application to this proceeding of sub-rules 134(3) and (4) of the Rules. When considering whether to make that order, it is relevant to consider that, if a document is required to be served in a particular way, rule 25(2) of the Rules provides that the Tribunal may order that the document be served in another way.
2. It is appropriate to make an order under section 23(2) of the ACAT Act dispensing with the application of sub-rule 134(4) (which provides that an application must not be served by post). That is because sub-rule 134(4) does not provide that a document is required to be served in a particular way, but rather prohibits service in a particular way. However, it is not necessary to dispense with the application of sub-rule 134(3), which requires the applicant to personally serve a sealed copy of the application on each respondent, because an order for substituted service under rule 25(2) achieves the same objective.

Application for an order under rule 19(1)(a) of the Rules

1. The Board applied for an order, under rule 19(1)(a)(ii) of the Rules, that the Board serve the initiating application on the respondent in the way required by a separate proposed order, made under rule 25(2) of the Rules. The proposed order under rule 19 is not necessary. The applicant (rather than the Tribunal) is required to serve the initiating application under rule 134(3) of the Rules. An order for substituted service under rule 25(2) is all that is required to provide for an alternative means of service.

Application for an order under rule 25(2) of the Rules

1. For reasons given above, I have made an order under rule 25(2) of the Rules permitting the Board to serve the initiating application in a way other than that provided for in rule 134(3), in similar terms to those sought by the Board.

[1] ACT Civil and Administrative Tribunal Act 2008, section 23(2)

[2] On the distinction between personal and subject matter jurisdiction, and the meaning of personal jurisdiction, see Thomas v a2 Milk Co Ltd [No 2] [2022] VSC 725 at [21]; Plaintiff S164/2018 v Minister for Home Affairs [2018] HCA 51, Edelman J at [6]; Rizeq v Western Australia [2017] HCA 23 at [203]; PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission [2012] HCA 33, French CJ, Gummow, Hayne and Crennan JJ at [14]-[17]; BHP Group Ltd v Impiombato [2022] HCA 33; Zurich Insurance PLC v Koper [2022] NSWCA 128 at [50]; Andrianakis v Uber Technologies (Ruling No 1) [2019] VSC 850 at [193]- [194]. See also Mark Leeming, Authority to Decide: The Law of Jurisdiction in Australia, 2nd edition, The Federation Press, 2020, Chapter 6

[3] Laurie v Carroll [1958] HCA 4; (1957) 98 CLR 310 at 322

[4] Zurich Insurance Co Ltd v Koper [2023] HCA 25 at [34]; BHP Group Ltd v Impiombato [2022] HCA 33 at [7]

[5] See, for example, Court Procedures Rules 2006, Div 6.8.9 and esp rules 6502 and 6503

[6] Andrianakis v Uber Technologies (Ruling No 1) [2019] VSC 850 at [198]

[7] See Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board [2007] HCA 23; De Pardo v Legal Practitioners Complaints Committee [1999] FCA 698 at [51]; Medical Board of Australia v Kemp [2018] VSCA 168 at [164]- [166]

[8] Re The Maritime Union of Australia; Ex parte CSL Pacific Shipping Inc [2003] HCA 43 at [58]

[9] Re The Maritime Union of Australia; Ex parte CSL Pacific Shipping Inc [2003] HCA 43 at [59]

[10] Laurie v Carroll [1958] HCA 4; (1957) 98 CLR 310

[11] Battenberg v Restrom [2006] FCAFC 20 at [15]

[12] Apollo Marble and Granite Imports Pty Ltd v Industry + Commerce [2008] VCAT 2298; Nursing & Midwifery Board of Australia v Finau [2021] NTCAT 1 at [10]

[13] In Nursing & Midwifery Board of Australia v Finau [2021] NTCAT 1 at [32]- [33], the Northern Territory Civil and Administrative Tribunal favoured the view that, because section 193 of the National Law does not, in terms, require service of an originating process upon an affected health practitioner to "trigger a tribunal proceeding," there is no requirement for service of a health practitioner, even if the practitioner is in Australia.

[15] Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2007] FCA 124 at [14]

[16] See, for example, Federal Commissioner of Taxation v Oswal [2012] FCA 1507 at [33]- [35]; Heenan (Receiver), in the matter of Ruby Apartments Pty Ltd (in liq) v Ralan Paradise No. 1 Pty Ltd (in liq) [2020] FCA 1878 at [16]- [17]; Capral Limited v DNV AS [2024] NSWSC 96 at [53]- [54].

[18] Nixon J reached a similar conclusion in a different context in New South Wales in Capral Limited v DNV AS [2024] NSWSC 96 at [97]