JOINDER AND SERVICE
15 At a further case management hearing held on 11 November 2021, it became apparent during exchanges between the parties that part of Mr Buckland's contention was that he was not the correct respondent. Part of Mr Buckland's contention was that whatever services were being provided were being provided by a company, Apat na Seasons Pilipinas Corporation (the Company), to which he had sold his business. The applicant was granted an opportunity to consider whether there ought to be a joinder application.
16 On 24 January 2023, an interlocutory application for joinder of the Company pursuant to r 9.05 of the Rules was made by the applicant. As part of that application, the applicant sought the following orders relating to service:
(1) Pursuant to rr 10.42 and 10.43(2) of the Rules, leave be granted to serve on the Company in the Philippines, in accordance with article 5 of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, done at the Hague on 15 November 1965 (Hague Convention), an amended originating application and associated relevant documents.
(2) Pursuant to r 1.34 of the Rules, any requirement under r 10.49 of the Rules that there be unsuccessful attempts at service of any documents filed in these proceedings be dispensed with.
(3) Pursuant to r 10.24(a) or alternatively r 10.49(a) of the Rules, the applicant may serve any documents filed in these proceedings on the Company by sending an electronic link to download and access any such documents by email to specified email addresses.
17 At a case management hearing held on 22 February 2023, the Court expressed its view that an order for joinder of the Company ought to be made in order to ensure the subject matter of the dispute could be dealt with at one time. The applicant was asked to consider the form of orders it required having regard to amendments made to Div 10.4 of the Rules relating to service outside the jurisdiction, which amendments commenced on 13 January 2023. The applicant was requested to provide a short note together with a revised form of order to the Court. The respondent was invited to provide by email to the Court and to the applicant any response he had to the matters which the applicant raised.
18 The applicant filed minutes of proposed order, seeking the following orders:
(1) Pursuant to r 9.05 of the Rules, the Company be joined as a respondent to this proceeding.
(2) Pursuant to r 8.21 of the Rules, the applicant have leave to amend the originating application dated 14 October 2022.
(3) Pursuant to proposed paragraph 2 of the orders, the applicant file (and serve on the respondent) an amended originating application.
(4) Pursuant to r 10.44 of the Rules, the applicant have leave to serve on the Company specified associated relevant documents (Relevant Documents).
(5) Pursuant to r 1.34 of the Rules, any requirement under r 10.49 of the Rules that there be unsuccessful attempts at service of any documents filed in these proceedings, including the amended originating application and Relevant Documents, be dispensed with.
(6) Pursuant to r 10.24(a) or alternatively r 10.49(a) of the Rules, the applicant may serve any documents filed in these proceedings, including the amended originating application and the Relevant Documents, on the Company by:
(a) sending an electronic link to download and access any documents filed in these proceedings by email, addressed to the Proper Officer of the Company, at certain specified email addresses; or
(b) sending a copy of the documents in PDF form as attachments to one or more emails addressed to the "Proper Officer" of the Company at the email addresses specified in subparagraph (a).
19 The applicant also filed a short note explaining the basis for the orders it sought. The explanation was as follows:
(1) The applicant no longer sought leave to serve the amended originating application on the Company because of changes made to r 10.42. The Court observes that the amended rule provides that an originating application may be served outside of Australia without leave in the circumstances specified in the rule. Those circumstances include a proceeding that relates to the construction, effect or enforcement of a law of the Commonwealth, a State or a Territory (r 10.42(p)). These proceedings relate to the construction, effect and enforcement of the TAS Act, a law of the Commonwealth.
(2) The applicant continued to press its application for leave to serve specified associated relevant documents on the Company. Leave was also sought for service of a new Form 26A (now required by new r 10.43B). This leave was sought pursuant to r 10.44 which no longer requires service in accordance with the Hague Convention.
(3) Orders (5) and (6) were sought in substantially the same form as the orders sought prior to the amendments to the Rules. The amendments to the Rules did not substantially amended rr 10.45 and 10.49, and no changes had been made to rr 1.34 or 10.24. This means that the Court's power to grant substituted service for documents (including originating documents) on a party outside Australia remains unchanged vis-à-vis that power prior to the recent amendments.
20 Mr Buckland submitted that:
(1) Rule 10.44 did not permit the applicant to seek the leave of the Court to serve an originating document outside of Australia.
(2) The method of service was not in accordance with r 10.45 because the method was not consistent with the Hague Convention or the law of the Philippines. This was confirmed by r 10.46.
(3) Accordingly the proposed orders ought to be refused.
21 The Court notes that none of the changes to the Rules affect the orders for substituted service made by Charlesworth J in respect of Mr Buckland. The proposed minutes of order relate solely to documents to be served on the Company.
22 Although the proposed orders sought by the applicant are not directed at Mr Buckland, nonetheless, each of Mr Buckland's submissions is now addressed.
23 In relation to the first submission, the Court observes that the reason r 10.44 does not apply is because originating applications are addressed in r 10.42 (which provides for circumstances in which an originating application may be served outside of Australia without leave) and in r 10.43 (which provides for circumstances in which an originating application may be served outside of Australia with leave). For the reason set out above at [19(1)], the Court is of the view that r 10.42 applies in this case so leave is not required for service of the amended originating application outside of the jurisdiction.
24 The applicant here does not propose to serve in accordance with r 10.45 but seeks leave to substitute another method of service for both the amended originating application and the associated Relevant Documents. Rule 10.49 in Div 10.4 permits a party to apply to the Court for an order substituting another method of service where services in accordance with a convention, the Hague Convention or the law of a foreign country was not successful. Rule 10.24 in Div 10.2 provides for a party to seek an order from the Court to substitute another method of service if it is not practicable to serve a document on a person in a way required by the Rules. Rule 1.34 enables a Court to dispense with compliance with any of the rules.
25 As the applicant submitted, no substantiative changes have been made to any of rr 10.45, 10.49, 1.34 or 10.24 by the amendments to the Rules.
26 Charlesworth J explained how these rules, prior to amendment, interacted at [50]-[54] of her reasons in Buckland (emphasis added):
50. The question is whether I should substitute another method of service under r 10.24. That is, granting leave for the Board to serve the Documents on Mr Buckland by sending him an email or emails containing a link to download and access copies of them. A question of construction arises as to whether or not the power in r 10.24 might be exercised in circumstances where the requirements under r 10.49 are not otherwise met on the facts.
51. Rule 10.49 requires, implicitly at least, that the Court be satisfied that there be an attempt at service on a person and that that attempt has been unsuccessful. The relevant service is service under the Hague Convention. Here, there has been no attempt to serve in accordance with the Hague Convention, including because of the asserted impracticality and asserted urgency for interlocutory relief.
52. The Board relies on Ford, in the matter of Careers Australia Group Limited (in liq) v Mansfield [2022] FCA 173. O'Bryan J there discusses the interrelation between the various rules in a case in which an order for substituted service was sought immediately upon, and in conjunction with, an order granting leave under r 10.43. His Honour refers to a line of authority concerning the interrelation between the rules, including the interrelation between r 10.24 and r 10.49. The effect of those authorities is that this Court may make an order under r 10.24, notwithstanding the existence of r 10.49, provided, of course, that the requirements of r 10.24 are met. The authorities are also to the effect that, even if that be wrong, the Court has the power under r 1.34 to dispense with the requirement of a rule. The dispensation power extends to the dispensation of any requirement implicit in r 10.49 that there be proof of an unsuccessful attempt to serve documents on a person in a foreign country.
53. Accordingly, I am satisfied that I have the power to make an order under r 10.24 and that, in any event, I have the power under r 1.34 to dispense with the requirement under r 10.49 that there be an unsuccessful attempt at, in this case, personal service.
54. Both r 10.24(a) and r 10.49(a) empower the Court to substitute another method of service. I am satisfied, for the purposes of each of those rules, that the method of service sought under [2] of the claim for interlocutory relief is appropriate in these circumstances.
27 In circumstances where there has been no substantive amendment to any of any of rr 10.45, 10.49, 1.34 or 10.24 since her Honour's reasons published on 18 November 2022, her Honour's reasons apply with equal force to the present circumstances concerning the Company.
28 I am satisfied that it is appropriate to make the orders for substituted service. The material before the Court indicates that the average time for service to be effective in a foreign country is approximately four to six months, a timeframe which is not practicable given the nature of the proceedings (being enforcement of a Commonwealth law with a consumer protection policy element) and that service of the documents on the Company by email to the specified addresses is highly likely to bring the proceedings to the Company's attention.
29 The orders will be made in accordance with the applicant's minute of proposed order.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hespe.