LEE J:
1 Before the Court are two adjectival applications by Westpac in respect of an interlocutory application seeking to punish Basile Papadimitriou (also known as Mr Papas) for contempt of Court (contempt application).
2 They both relate to the mechanism by which Mr Papas is to be brought before the Court in order to answer a charge, a draft statement of which was filed with the Court on 6 October 2021. It is alleged that Mr Papas disobeyed a freezing order by giving instructions to a company, Macrovue Pty Limited, to pay two amounts of $150,000 and $570,000 held by the company to Mr Eric Constantinidis. The details are set out in more detail in the statement of charge, which I will sign.
3 The material before the Court on the current application indicates that the relevant freezing orders, including the relevant endorsement on those orders, were served on Mr Papas (the freezing orders having been amended from their original, ex parte form which had already been served).
4 The first application before me today is for substituted service of the contempt application, statement of charge and the affidavits upon which Westpac relies.
5 Rule 42.13 of the Federal Court Rules 2011 (Cth) (FCR) provides:
42.13 Service
The person charged must be served personally with:
(a) the application (whether originating or interlocutory); and
(b) the statement of charge; and
(c) the affidavits on which the party making the charge intends to rely.
6 I am satisfied that it is wholly impractical to serve the relevant documentation on Mr Papas. Mr Papas is presently in Greece and has been in that country since June 2021. Although he initially indicated, through his solicitor and counsel, an intention to return to Australia "to attend to [the] serious allegations against him personally", he has failed to do so. This is notwithstanding his then counsel, at one stage, tendered before me copies of travel arrangements that were said to have been made for his imminent return.
7 The explanations provided by Mr Papas for his failure to return to the jurisdiction have been varied. Initially, it was said that he could not return to Australia because of medical reasons, but lately, that has transformed somewhat into an assertion that he does not have money to buy a ticket from Greece, and that he would be caught up with current COVID restrictions as to entry into Australia.
8 I will turn to the evidence concerning Mr Papas absenting himself, and continuing to absent himself from Australia later, but for present purposes, I am satisfied that there is no prospect of Mr Papas returning in the near future in order to allow for service to be effectuated by orthodox means. The question that then arises is twofold: whether, notwithstanding the terms of FCR 42.13, substituted service (a) can; and (b) should, be ordered?
9 As to (a), I am satisfied that it can be ordered.
10 It is evident that FCR 42.13 is the successor of Order 40, rule 8 of the former Rules and, apart from some inconsequential changes, they are essentially the same. The issue of whether the Court has power to dispense with the requirements of personal service notwithstanding the terms of Order 40, rule 8 was dealt with authoritatively by the Full Court in Lazar v Taito (Aust) Pty Ltd (1985) 5 FCR 395 (Fox, McGregor and Neaves JJ).
11 In that case, two alternative arguments were advanced: first, that there was no power to dispense with the requirement for personal service; and secondly, in the alternative, if there was a discretion to dispense with personal service in contempt proceedings, such a discretion should only be exercised where it could be shown that the accused person is evading service.
12 At the time of that case, the relevant Rules provided (like the current FCR 1.34), that there could be dispensation with compliance with the Rules either before or after the occasion for compliance arises, being a position that existed formerly in equity: see Ferrand v The Mayor, Aldermen and Burgesses of Bradford (1856) 8 De G M & G 93; 44 ER 324 (at 325).
13 Under the old Rules, however, there was no exact equivalent of the current FCR 1.32, which allows the Court to make an order it considers appropriate in the interests of justice. In any event, in Lazar, it was held that the Court's discretionary power to dispense with personal service could be exercised, even though to do so would override the requirement in the Rules for personal service, particularly where there is no apparent injustice (at 403-404 per McGregor J), although it was suggested that there would be limited circumstances in contempt proceedings in which the discretion should be exercised (at 414 per Neaves J).
14 Having dealt with power, I am also satisfied on the evidence that the proposed mode of substituted service is likely to bring the service of the documents to the attention of Mr Papas. It is proposed that service be effected on Mr Papas by sending the documents: (a) to the current address for service (as noted in the Form 10 notice of address); (b) by hard copy to the former solicitors for Mr Panetta (who filed that address for service), Panetta Lawyers; (c) by email to that firm; (d) by email to Ms Louise Agostino (whom the evidence discloses is the so-called "domestic partner" of Mr Papas) at her email address and requesting that Ms Agostino inform Mr Papas that the documents can be downloaded; and further (e) by the sending of a short message service (SMS) to a phone number used by Mr Papas in Greece, which was provided to the Court by his former solicitor and was the number in respect of which Mr Papas communicated with his erstwhile solicitor.
15 Given the impracticality of service of the documents on Mr Papas in any other way, I am satisfied that this is one of the limited circumstances where such an order should be made. In short, there is no practical alternative and I am comfortably satisfied the documents will come to his attention.
16 The second application is for a warrant to issue for the arrest of Mr Papas.
17 By s 31 of the Federal Court of Australia 1976 (Cth) (Act), this Court has the same power "to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court". Contempt is addressed in Pt 42 of the FCR.
18 FCR 42.14 provides as follows:
42.14 Arrest
(1) If an application for punishment of a contempt has been filed, or a proceeding has been started for punishment of a contempt, a party making the charge may apply to the Court for:
(a) an order that the person charged give security for the person's appearance to answer the charge; or
(b) a warrant for the person's arrest and detention in custody until the person is brought before the Court.
(2) The party making the charge under subrule (1) must satisfy the Court that the person charged is likely to abscond or otherwise withdraw from the jurisdiction of the Court.
(3) If the person charged does not comply with an order to give security, the Court may issue a warrant, in accordance with Form 90, for the arrest of the person and for the person's detention in custody until the person is brought before the Court to answer the charge.
19 In this case, I am satisfied that Westpac is a party who has made an application for punishment of contempt and accordingly, is in a position to make application for an order for the issue of a warrant for arrest and detention of Mr Papas until he is brought before the Court.
20 As the terms of the Rule make clear, before the Court will make an order for the issue of a warrant, it must be satisfied by the party making the charge that the person charged is likely to abscond or otherwise withdraw from the jurisdiction of the Court. The question that then arises is whether the Rule is satisfied where, like the position of Mr Papas, a person has already left (or using the language of the Rule, withdrawn or absconded) from the jurisdiction of the Court. This question was considered by the Full Court (Besanko, Wigney, and Bromwich JJ) in Mensink v Parbery [2018] FCAFC 101; (2018) 264 FCR 265.
21 In that case, Bromwich J (at 311-312 [189], with whom Besanko J agreed (at 267-268 [1]), held that it could be said that a person was "likely to withdraw from the jurisdiction" even when he had already done so, and the fact that a person had expressed an intention to return some months later did not change the position, especially as no clear or firm date was indicated. Further, Wigney J found (at 281-283 [92]-[98]), after referring to authorities as to the meaning of "abscond", that the rule should be "construed beneficially so as to permit the issue of a warrant in circumstances where the person has already left the jurisdiction and has evinced an intention not to return in the near future."
22 As noted above, there is no basis, let alone a reasonable basis, for thinking that Mr Papas is likely to return from Greece to Australia on any firm date. Indeed, every indication is that he steadfastly intends to remain in Greece. This is consistent with his conduct in relation to this proceeding, which has been less than satisfactory. He has repeatedly disobeyed Court orders for the filing of material and apparently provided (at best) Delphic information to his solicitors. It might be an exercise in masterly understatement to suggest that the conduct of the proceeding on his behalf has not been consistent with the overarching purpose.
23 As to the various reasons thus far provided for his delay, there is no reason for me to consider that his health difficulties prevent his return to Australia if he intended to do so. Moreover, there has been no suggestion based on evidence to date that if he wished to return to Australia now, he would be unable to do so because of some inability to obtain entry into the country (albeit, he would no doubt need to enter into quarantine arrangements).
24 The only other matter raised as a basis of Mr Papas not returning, that is, a lack of funds, is somewhat difficult to reconcile with his conduct while in Greece and at the time when it was said that he was making arrangements to return to Australia. Mr Papas, upon his entry into Greece in mid-June, did not behave like a man short of funds.
25 The evidence discloses that after arriving in Greece refreshed by his travel in business class on Qatar Airways, he went to what appears to be a somewhat luxurious accommodation in Athens - and thence to an apparently fancy beach resort. As I said during the course of argument, it does not appear he was "living on his uppers" or was vexed by lack of access to sources of funds.
26 Whether or not his American Express Centurion card still remains active, on the material before me, I am satisfied that if he wished to return to Australia, it is more likely than not he would have had access to sufficient funds in order to allow him to do so.
27 Further, despite being obliged to do so upon his solicitor filing a notice of ceasing to act, Mr Papas has not filed any updated notice of address for service, and no steps have been taken by Mr Papas to ensure that those acting for Westpac can contact him. It is quite clear on the evidence that he is not seeking to engage actively with the proceeding, and I am satisfied he has withdrawn from the jurisdiction and evinced an intention not to return to Australia in the foreseeable future.
28 It is not necessary for me to form a view about whether or not the issue of the warrant will, in fact, secure the attendance of Mr Papas before the Court in the short to medium term. There has been some suggestion today made on behalf of Westpac that a warrant, if issued, would be sufficient to ground an application to the Hellenic Republic authorities for the extradition of Mr Papas, although I express no view whatsoever as to the correctness of this submission or upon the likelihood of relevant treaty arrangements being able to be invoked in relation to warrant issued to secure attendance on a contempt of Court charge.
29 Additionally, I should note that there is no requirement for me to engage with the merits of the contempt charge for the purposes of the application.
30 The warrant should issue, although some arrangement ought to be made for the provision of security which, if provided, would secure his attendance and, if paid into Court, would result in his release from detention pending the hearing. The warrant will so provide and Westpac, if it wishes, can be heard as to this issue as to security, which was not addressed orally.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee.