Essentials for proving service in the Federal Court

When commencing proceedings in the Federal Court of Australia (Court), the applicant (Applicant) (or plaintiff), (the party who commences the proceedings) is required to serve the documents filed in the Court on all respondents (Respondents) or defendants (the party the proceedings are brought against) personally in accordance with the Federal Court Rules 2011 (Cth) (FC Rules).

In circumstances where a Respondent evades service, the Applicant will need to do everything in their power to prove to the Court that the other party has been served and made aware of the proceedings.

What does it mean to be personally served?

Pursuant to rule 8.06 of the FC Rules:

“The Applicant must, as soon as practicable and at least 5 days before the return date fixed in an originating application, serve a copy of the following personally on each Respondent named in the originating application:

(a)  the originating application;

(b)  each other document required to accompany the application…”

If the Respondent is a company, personal service may be effected pursuant to rule 10.02 of the FC Rules by:

“(a) leaving it at, or posting it to, the company’s registered office; or

(b) delivering a copy of the document personally to a director of the company who resides in Australia or in an external Territory; or

(c) if a liquidator of the company has been appointed–leaving it at, or posting it to, the address of the liquidator’s office in the most recent notice of that address lodged with ASIC; or

(d) if an administrator of the company has been appointed–leaving it at, or posting it to, the address of the administrator in the most recent notice of that address lodged with ASIC.”

On the other hand, there is only one (1) way to serve an individual pursuant to rule 10.01 of the FC Rules:

“A document that is to be served personally on an individual must be served the document with the individual”.

This may seem like a straightforward process.  However, Respondents often refuse to accept the documents when they are served physically by the process server.  If this is the case, then pursuant to rule 10.12 of the FC Rules:

“(1) … the document is taken to have been served personally if the person serving the document:

(a) puts it down in the individual’s presence; and

(b) tells the individual what the document is.

(2) It is not necessary to show the original of the document to the person being served.”

In Lo Pilato v Giannasca; In the Matter of Giannasca [2014] FCA 1108, the Applicant swore in an affidavit that:

• they attempted to serve the originating application to the Respondent by handing the documents to him at a physical meeting;
• the Respondent refused to accept the documents;
• they then explained that the documents were an originating application its accompanying material and set them on the table; and
• the Respondents left the meeting without picking up the documents on the table.^[1]

Based on the Applicant’s affidavit, Foster J was satisfied that the Applicant satisfied the requirement in accordance with rule 10.12 of the FC Rules and ruled that the service was valid.^[2]

If the Respondent evades service, this does not automatically mean that the proceedings cannot go ahead.  Instead, the Applicant can do one (1) of two (2) things.

Option 1 – Deemed Service

This first option involves applying to the Court for deemed service (Deemed Service), which means that the Court will order that the documents are taken to have been served on the Respondent on a certain date.  Pursuant to rule 10.23 of the FC Rules, to be successful, the Applicant needs to prove that:

“(a) it is not practicable to serve the Respondent personally; and

(b) the documents have been brought to the Respondent’s attention.”

Proving that the proceedings have been brought to the Respondent’s attention for the purposes of Deemed Service requires the Applicant to attempt to serve the documents via any means necessary and provide an affidavit of service outlining the things that they have done to do this.

In Ross v Cotter [2015] FCA 310, the Applicants’ solicitor provided evidence that:

• a process server attempted to serve the First Respondent at his last known residential address but found that the First Respondent no longer lived there;
• the process server attempted to contact him via mobile telephone and left a message, which received no response;
• they were not aware of the First Respondent’s current residential address;
• the Second Respondent (the First Respondent’s wife) was served personally; and
• based on email exchanges between the Second Respondent and the Applicants’ solicitor it appeared that the First and Second Respondents had discussed the documents served on her.^[3]

Based on the above evidence, Reeves J was satisfied that the requirements of rule 10.23 of the FC Rules had been met and made orders for Deemed Service.^[4]

In Australia Pesticides and Veterinary Medicines Authority v Arnica Pty Ltd [2021] FCA 1328, the Applicant sought orders for Deemed Service and provided four (4) affidavits of service by the same person which stated that they:

• went to the residential address of the Third and Fourth Respondents, as shown on an Australian Securities and Investments Commission (ASIC) search of the First Respondent, on more than ten (10) occasions and knocked on their door;
• left a letter in the Third and Fourth Respondents’ letterbox, which received no response;
• physically went to, and called, the Third and Fourth Respondents’ shop and left a message, which received no response;
• saw, on one (1) occasion, a Notice of Removal of Implied Right of Access on the front door of the Third and Fourth Respondents’ residential address; and
• gained access to the Third and Fourth Respondents’ residential address via a back fence, saw two (2) people who he believed to be the Third and Fourth Respondents and who went back inside either after seeing the person or being questioned on their identity, and dropped the documents over the back fence while calling out to the people that they had been served.^[5]

Jackson J stated that:

• it was impracticable to serve the Third and Fourth Respondents as they were clearly avoiding it; and

there is evidence that they lived at the residential address that had been attended; but

• it was unclear whether two (2) bundles of the documents were dropped over the fence (one (1) for each Respondent);
• there was doubt about the identity of one (1) of the Respondents; and
• there was doubt that the documents were left with either of the Respondents as they seemingly left the back garden by the time the documents had been dropped there.^[6]

Based on the above, Jackson J held that rule 10.12 of the FC Rules had not been met but there was ample evidence to conclude that the documents had been brought to the Third and Fourth Respondents’ attention and made orders for Deemed Service.^[7]

Option 2 – Substituted Service

If it is impracticable to serve a document personally, or as otherwise required by the FC Rules, the second option is to apply for substituted service (Substituted Service).  Pursuant to rule 10.24 of the FC Rules, the court may make 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.”

For instance, in some cases it is impracticable to serve the Respondent personally as they reside overseas.  In these circumstances the best option for the Applicant may be to apply for Substituted Service.

In Ford, in the matter of Careers Australia Group Ltd (in liq) v Mansfield [2022] FCA 173, the Plaintiffs sought leave to serve four (4) of the Defendants who were based overseas and applied for substituted service on two (2) of those Defendants who were individuals.^[8]

A solicitor for the Plaintiffs filed an affidavit stating that:

• ASIC records show that one (1) of the Defendants reside in the Czech Republic and another in Singapore; and
• records from Companies House, the United Kingdom equivalent of ASIC, show that the remaining two (2) Defendants are companies registered in the United Kingdom.^[9]

O’Bryan J noted that a party does not have to prove that it is impossible to serve the other side, only that it is more than just inconvenient to serve them in accordance with the FC Rules.^[10]

As the Defendants in this matter were to be served outside of Australia, the Plaintiff also had to first apply for leave to serve outside of Australia in accordance with rule 10.43 of the FC Rules.  Notably, rule 10.49 is the general rule to be applied for substituted service outside Australia, which requires the Plaintiff to show that service was unsuccessful rather than being impracticable.  O’Bryan J stated that the question is whether rule 10.24:

• can be relied upon, even if leave for service outside of Australia has been granted; or
• is inconsistent with division 10.4 of the FC Rules (Service outside Australia).^[11]

O’Bryan J followed previous decisions which concluded that rule 10.24 can be relied on where leave to serve outside Australia has been obtained.^[12]

The Plaintiffs were granted leave to serve the Defendants after they satisfied the requirements of rule 10.43,^[13] being:

• an affidavit stating:
  • the country the Defendant is, or is likely to be, located;
  • the proposed method of service;
  • the proposed method is permitted by a convention, e.g., the Hague Convention, or the law of the country in which the Defendant is located;
• the Court has jurisdiction in the proceeding, which is a type mentioned at rule 42 of the FC Rules; and
• the Plaintiff has a prima facie case for all, or any part of, the relief claimed in the proceeding.

In relation to substituted service, O’Bryan held that there was ample evidence that it was impracticable to personally serve the two (2) individual Defendants by post and email to their former solicitors for a number of reasons, including:

• the addresses in ASIC’s records may not be up to date;
• there was likely to be delays in effecting service in accordance with the Hague Convention; and
• they had been sent emails referring to the proceeding, which were previously used by the Defendants and had not recently received a ‘return to sender’ or ‘non-delivery’ response and a read receipt was sent by one (1).^[14]

Takeaways

If a Respondent is evading service, or it will be impracticable to serve them in accordance with the FC Rules, the Applicant can apply to the Court for Deemed or Substituted Service.  However, it needs to be shown that the Applicant has done everything possible to serve them in the usual manner.

Links and further references

Legislation

Federal Court FC Rules 2011 (Cth)

Cases

Australia Pesticides and Veterinary Medicines Authority v Arnica Pty Ltd [2021] FCA 1328

Ford, in the matter of Careers Australia Group Ltd (in liq) v Mansfield [2022] FCA 173

Lo Pilato v Giannasca; In the Matter of Giannasca [2014] FCA 1108

Ross v Cotter [2015] FCA 310

Further information about obtaining orders for Deemed or Substitute Service

If you need advice on obtaining orders for Deemed or Substituted Service, contact us for a confidential and obligation-free discussion:

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

[1] Lo Pilato v Giannasca; In the Matter of Giannasca [2014] FCA 1108, at [4].

[2] Ibid, at [5].

[3] Ross v Cotter [2015] FCA 310, at [2] and [4].

[4] Ibid, at [3], [5] and [6].

[5] Australia Pesticides and Veterinary Medicines Authority v Arnica Pty Ltd [2021] FCA 1328, at [5].

[6] Ibid, at [6]-[7].

[7] Ibid, at [8]-[9].

[8] Ford, in the matter of Careers Australia Group Ltd (in liq) v Mansfield [2022] FCA 173, at [10].

[9] Ibid, at [12].

[10] Ibid, at [14].

[11] Ibid, at [29].

[12] Ibid, at [32].

[13] Ibid, at [50].

[14] Ibid, at [53], [54] and [60].

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