Australian Building and Construction Commissioner v Windus [2019] FCA 1526

Australian Building and Construction Commissioner v Windus [2019] FCA 1526

Because numerous attempts had been made to serve Benjamin Sipkes personally at three different places, he appeared no longer to work or live at those places, and the cross-claimants did not know his whereabouts, personal service was not practicable. Service by text message to a number he had answered and by email to an address where delivery notification had been received, in combination, gave rise to a reasonable probability that he would be informed of the commencement and contents of the cross-claim and the potential consequences, so substituted service should be ordered.

Jurisdiction
Australia
Judgment Date
13 September 2019
Procedural Posture
Fair Work Proceeding Involving Pecuniary Penalty Claims and a Cross Claim Alleging Contraventions of the Fair Work Act 2009 (cth) / Interlocutory Application by the Cross Claimants for Substitution of the First Cross Respondent and Substituted Service on the Third Cross Respondent
Outcome
The cross-claimants' interlocutory application dated 1 August 2019 was allowed, including orders substituting SKS Builders Pty Ltd as first cross-respondent and permitting substituted service on Benjamin Sipkes.
Legal Topics
['substituted Service' 'personal Service Not Practicable' 'cross Claim' 'fair Work Act Contraventions']
['practice and Procedure' 'employment and Industrial Relations'] ['substituted Service' 'personal Service Not Practicable' 'cross Claim' 'fair Work Act Contraventions']

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Procedural Posture

Fair Work Proceeding Involving Pecuniary Penalty Claims and a Cross Claim Alleging Contraventions of the Fair Work Act 2009 (cth) / Interlocutory Application by the Cross Claimants for Substitution of the First Cross Respondent and Substituted Service on the Third Cross Respondent

Legal Issues

  1. 1 ['Whether it was not practicable to serve the notice of cross-claim and statement of cross-claim on Benjamin Sipkes by personal service.' 'Whether service by text message and email would give rise to a reasonable probability that Benjamin Sipkes would be informed of the cross-claim and its consequences.']

Ratio Decidendi

Because numerous attempts had been made to serve Benjamin Sipkes personally at three different places, he appeared no longer to work or live at those places, and the cross-claimants did not know his whereabouts, personal service was not practicable. Service by text message to a number he had answered and by email to an address where delivery notification had been received, in combination, gave rise to a reasonable probability that he would be informed of the commencement and contents of the cross-claim and the potential consequences, so substituted service should be ordered.

Court Disposition

The cross-claimants' interlocutory application dated 1 August 2019 was allowed, including orders substituting SKS Builders Pty Ltd as first cross-respondent and permitting substituted service on Benjamin Sipkes.

Orders

  • ["The cross-claimants' interlocutory application dated 1 August 2019 is allowed." 'Pursuant to r 9.08 of the Federal Court Rules 2011 (Cth), SKS Group Pty Ltd (ACN 122 565 262) is removed as the first cross-respondent.' 'Pursuant to r 9.05(1) of the Federal Court Rules 2011 (Cth), SKS Builders Pty Ltd (ACN 163 340...