Rowe (by next friend Guscott) v Barton as Trustee for Barton Family Trust trading as Sealwerx WA

JACKSON J: 1 The applicant applies in this proceeding for damages and for penalties and other orders under the Fair Work Act 2009 (Cth). The nub of the application is that when the applicant was employed by the respondent, the respondent failed to make certain superannuation contributions which he was required to make under a relevant award, and also pursuant to other obligations identified in the amended statement of claim. The applicant alleges that as a result of that failure, she did not have the benefit of a disability insurance policy associated with the superannuation fund at a time when, on 5 April 2015, she suffered a stroke, which she says has left her totally and permanently disabled from work. The applicant claims that if she had been covered by that insurance policy, she would have been entitled to benefits in the order of $210,000. 2 The respondent has been served with the originating application and the statement of claim and amended versions of those documents. However, he has not filed any notice of address for service in this matter and has failed to appear at any hearing or to comply with directions the court has made, including orders requiring him to file and serve a defence. The applicant has therefore applied for judgment to be entered in her favour by reason of the default. That application is listed for hearing on 23 March 2021. 3 The present interlocutory application for substituted service arises out of the fact that the applicant has tried on multiple occasions to serve the respondent with the interlocutory application for default and documents relevant to the application. The main evidence as to the attempts to serve the respondent with those documents is contained in an affidavit of Daniel Clarke affirmed on 24 February 2021, which has as one of its annexures an affidavit of a process server, Beverley Ward. Ms Ward's affidavit deposes to 15 attempts to serve Mr Barton at his business address in Osborne Park, ranging between 4 January 2021 and 18 February 2021. On each of the attempts, the business premises appeared to be unattended and often locked, save for one occasion, on 18 February 2021, where Ms Ward spoke to a person who appears to have been employed by a different business sharing the premises. That person told Ms Ward that Mr Barton was not at the premises, and that he also works from his home in Bullsbrook. 4 While the applicant had been successful in previous service of documents on Mr Barton at the business address, on the last such occasion, the process server provided a report to the effect that when served with documents, Mr Barton refused to accept them, shouted abuse at the process server, threw the documents across the car park, and then picked them up and placed them in a bin while shouting for the process server to depart the property. Obviously, to the extent that Mr Barton was once willing to accept service, he no longer is. 5 On 18 February 2021, Ms Ward attended at the home address of Mr Barton in Bullsbrook obtained from a title search, to find that the gates there were locked and that she could not enter the premises. She could not see the house from the road. She waited 20 minutes and sounded her horn, but no one came to the gates. 6 There is also evidence in a subsequent affidavit of Mr Clarke affirmed 5 March 2021 that, for a period of time from 2018 onwards, his firm had communicated with the respondent by way of an email address, being a business email address. The respondent or another person who can be inferred to have been acting on his behalf did reply, on occasion, to those earlier emails. 7 Rule 10.24 of the Federal Court Rules 2011 (Cth) provides: 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. 8 In Commissioner of Taxation v Caratti (No 2) [2018] FCA 1500 at [10], Colvin J said: 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. 9 In Australian Building and Construction Commissioner v Windus [2019] FCA 1526 at [8], I expanded on those principles as follows (citations omitted): An order for substituted service under r 10.24 must be based on a reasonable probability that the identified method of service will inform the intended recipient. Where experience has shown that a particular method of communication has resulted in material being brought to the attention of the person to be served, an order for substituted service according to that method will be likely to achieve the same result. 10 I am satisfied in the present case that the evidence demonstrates that it is not sensible or realistic to effect personal service on the respondent, given the numerous attempts to do so at both his business and home address and his evident unwillingness to receive further documents in this proceeding. 11 I am also satisfied on the basis of evidence provided concerning previous communication with the respondent by way of email that there is a reasonable probability that the documents served will be brought to his attention if they are served by way of email at the address proposed in the application. Similarly, it may be inferred that it is likely that documents posted to the respondent's business address and home address will come to his attention. While attempts to serve him personally at those premises have recently been unsuccessful, the evidence does not suggest that he has abandoned either premises. 12 In my view, it is appropriate to require the documents to be served on the respondent to be accompanied by a communication setting out in clear terms the possible consequences for him if he does not attend the hearing of the interlocutory application for default judgment. The wording of that communication will be included in the orders to be made. 13 For those reasons, I will make orders in terms which reflect some amendment to the orders sought by the applicant in the application for substituted service. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson.