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Polis v Zombor [2019] FCA 1477 | Case summary | Zoe

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Polis v Zombor

[2019] FCA 1477

Federal Court of Australia|2019-09-05|Before: O'Bryan J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2019-09-05

Before

O'Bryan J

Catchwords

PRACTICE AND PROCEDURE - preservation orders made under rule 14.11 of the Federal Court Rules 2011 (Cth) pending further application for inspection of property

Source

Original judgment source is linked above.

Catchwords

PRACTICE AND PROCEDURE - preservation orders made under rule 14.11 of the Federal Court Rules 2011 (Cth) pending further application for inspection of property

Judgment (2 paragraphs)

[1]

Pursuant to Rule 14.11 of the Federal Court Rules 2011 (Cth), until 31 October 2019 JANET DENISE ZOMBOR of 19 Zebrafinch Court, Carrum Downs in the State of Victoria must preserve the following data and information stored on any mobile phone owned by her or in her possession and used by her: (a) any and all messages transmitted (or that are transmitted after the date of these orders) between her and LUKE MICHAEL ZOMBOR (whether in a group with other individuals or individually) by way of the application 'WhatsApp', on and from 11 December 2017; (b) any and all messages transmitted (or that are transmitted after the date of these orders) between her and LUKE MICHAEL ZOMBOR (whether in a group with other individuals or individually) by way of any other mobile messaging service (including SMS messaging), on and from 11 December 2017; (c) the mobile or other telephone number(s) (whether Australian or international) used by LUKE MICHAEL ZOMBOR on and from 11 December 2017.
A copy of these orders is to be served by the Prospective Applicant on JANET DENISE ZOMBOR.
JANET DENISE ZOMBOR has liberty to apply to vary or discharge these orders upon giving 5 business days' notice to the Prospective Applicant.
Costs be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

[2]

O'BRYAN J: 1 On 5 September 2019, I made orders pursuant to r 14.11 of the Federal Court Rules 2011 (Cth) (Rules) for the preservation of certain property of Bela Gabor Zombor and Janet Denise Zombor, the parents of the first prospective respondent, Luke Michael Zombor. 2 These are my reasons for making those orders. 3 By originating process filed on 27 February 2018, Mr Polis sought orders for preliminary discovery from Mr Zombor under r 7.23 of the Rules. 4 Mr Polis was unable to locate Mr Zombor and applied for orders for substituted service of the originating process on Mr Zombor. On 26 April 2018, Murphy J made those orders pursuant to r 10.24. One of the methods of substituted service was leaving the documents marked to the attention of Mr Zombor with a person who is apparently over the age of 16 and residing at the address 19 Zebrafinch Court, Carrum Downs in Victoria. The evidence showed that Mr Zombor's parents resided at that address. 5 On 5 February 2019, Murphy J made the orders for preliminary discovery from Mr Zombor that had been sought by Mr Polis. His Honour also ordered that the orders for discovery be served on Mr Zombor by methods that included service at the Carrum Downs address. The orders contained an endorsement pursuant to r 41.06 informing Mr Zombor, as the first prospective respondent, that he will be liable to imprisonment, sequestration of property or punishment for contempt if he neglects or refuses to do what was required by the order. The background to, and reasons for, those orders are set out in the judgment of Murphy J in Polis v Zombor [2019] FCA 69. 6 The evidence before me establishes that the orders for discovery made on 5 February 2019 were served by Mr Polis on Mr Zombor by the methods of substituted service specified in the orders, including by service at the Carrum Downs address. The evidence also establishes that Mr Zombor has not complied with the orders for discovery. 7 By an interlocutory application filed 22 May 2019 pursuant to r 42.11, Mr Polis seeks a declaration that Mr Zombor is guilty of contempt for failing to comply with the orders for preliminary discovery made on 5 February 2019 and that a fine be imposed for the contempt. Mr Polis also seeks an order that a warrant be issued for Mr Zombor's arrest and detention in custody until he is brought before the Court. The interlocutory application was accompanied by a statement of charge. As a first step, Mr Polis sought orders for substituted service of the interlocutory application, statement of charge and supporting affidavits on Mr Zombor at his parents' Carrum Downs address. That application stated that it would be heard at 9.30am on 5 June 2019. 8 By an affidavit of attempted service and an affidavit of service both sworn 3 June 2019, Clarrie Swan, a process server, deposed that on 27 May 2019 he attended the Carrum Downs address to attempt to effect service of the interlocutory application, statement of charge and supporting affidavits on Mr Zombor. Mr Swan spoke to a woman whom he identified as Luke Zombor's mother, Janet Zombor. Mrs Zombor advised that her son had not resided at the Carrum Downs address for the past twenty years. Mr Swan was unable to obtain a forwarding address or contact number for Mr Zombor. Mr Swan gave the documents to Mrs Zombor in a sealed envelope addressed to Luke Michael Zombor and asked that the documents be passed on to Mr Zombor as a matter of urgency. 9 Mr Zombor did not appear at the interlocutory hearing before me on 5 June 2019. I heard the application by Mr Polis for substituted service ex parte and made orders for the substituted service of that application: Polis v Zombor (No 2) [2019] FCA 856. 10 By an affidavit of service sworn 18 June 2019, Mr Swan deposed that on 11 June 2019 he again attended the Carrum Downs address to effect service of the documents previously sought to be served on Luke Zombor on 27 May 2019 as well as a copy of the orders for substituted service I made on 5 June 2019. When Mr Swan attended the Carrum Downs address, he spoke to a male person whom he identified as Bela Zombor and who confirmed that he resided at that address. Mr Swan attempted to hand an envelope containing the documents sought to be served to Mr Bela Zombor and said "I'm serving you with these documents for Luke Michael Zombor as per an order from Justice O'Bryan. Would you please hand them on to him." Mr Swan explained the contents of the documents and when Mr Bela Zombor refused to accept service of the documents, Mr Swan left them at his feet. 11 To date, Mr Zombor has not taken any steps in the proceeding and the prospective applicant does not know his whereabouts. 12 Mr Polis subsequently served subpoenas on each of Mr Zombor's parents to give evidence at Court on 5 September 2019. Ultimately, the subpoena to Mrs Janet Zombor was not called upon due to her illness. However, Mrs Zombor filed an affidavit affirmed 3 September 2019 in which she gave evidence that, although she had received A4 envelopes marked to the attention of her son from a process server who had visited the Carrum Downs address on several occasions, Mrs Zombor had not seen her son since the delivery of those envelopes and so had been unable to pass the documents on to her son. Mrs Zombor also gave evidence that she usually communicates with her son using the mobile phone application "WhatsApp" and that she last communicated with her son on 4 July 2019. 13 At the hearing on 5 September 2019, Mr Bela Zombor attended Court to give evidence in compliance with the subpoena served on him. Mr Bela Zombor's evidence was relevantly as follows: (a) After the process server attended the Carrum Downs address in May 2018, Mr Bela Zombor found three calling cards from Mario Appleton which had been left in his letterbox. The calling cards were addressed to Luke Zombor and stated "Please contact me re an urgent matter" and included a mobile phone number. When Mr Bela Zombor later asked his son about the calling cards, his son told him to throw them out and did not want to discuss the matter. (b) Whenever Mr Bela Zombor had raised matters relating to his son's previous businesses, his son would get upset, refuse to discuss those matters and would not make contact again with his father for a while. (c) As a consequence of the foregoing, Mr Bela Zombor did not forward any of the documents served at the Carrum Downs address to his son. (d) When Mr Bela Zombor was asked how he communicated with his son, he said that they communicated using the "WhatsApp" application on his mobile phone and that he had last communicated with his son via WhatsApp on Father's Day on 1 September 2019. When asked if he knew his son's mobile number, Mr Bela Zombor said that he could not recall. When asked if he still had the same mobile phone he had used on that date, Mr Bela Zombor replied that he did. When asked whether he had that mobile phone in his possession, Mr Bela Zombor replied that he did not and that it was currently in his barrister's chambers. Mr Bela Zombor confirmed that the mobile phone number that he used to contact his son on WhatsApp is stored on his mobile phone. (e) When Mr Bela Zombor was asked where his son currently lived, he said he did not know. He said that his son moved around a lot. Mr Bela Zombor said that he did not know whether his son currently lived in Australia and that the last time his son had told him where he was moving, which he estimated was three to four months ago, he had told him that he was moving to Vietnam. However, Mr Bela Zombor explained that when his son called him on 1 September 2019 via WhatsApp, he was in Sydney at the time. 14 After Mr Bela Zombor gave evidence, counsel for Mr Polis applied for an order under r 14.11 for the preservation of property, being the data and information on the mobile phones of Mr Zombor's parents recording their communications with Mr Zombor and his phone number. The application was sought for the purpose of preserving that data and information pending the filing of a further application under r 14.01, on notice to Mr Zombor's parents, to inspect their mobile phones and to make a copy of the data and information preserved. 15 In the circumstances described above, I made the orders sought. The evidence before the Court supports a finding that Mr Luke Zombor has actively avoided being served with the Court's processes and his parents have assisted him by not forwarding to him documents that have been served at their residential address. The data and information stored on the mobile phones of Mr Zombor's parents concerning communications with him is likely to provide evidence concerning his whereabouts, his telephone number and possibly his knowledge of the applications that have been brought against him including the charge of contempt. Given the evidence that both of Mr Zombor's parents have, to some extent, assisted Mr Zombor's avoidance of the Court's processes by refusing to pass Court documents on to him, I consider that there is a real risk that, if Mr Polis applies for an order to inspect the mobile phones and copy data and information stored on them, the data and information will be deleted from the mobile phones. 16 The orders I have made are not onerous or invasive. They merely require that Mr Bela Zombor and Mrs Janet Zombor refrain from deleting specified electronic data and messages from their mobile phones. Further, I have limited the duration of the order to 31 October 2019. This provides Mr Polis with an adequate opportunity to make an application for inspection and copying of the relevant data and information. If no such application is made within that time, the orders will expire. 17 Accordingly, I consider it appropriate to make the orders for the preservation of the data and information. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Bryan.