Yousif v Commonwealth Bank of Australia (No 2) [2011] FCA 58 (7 February 2011)

Last Updated: 8 February 2011

FEDERAL COURT OF AUSTRALIA

Yousif v Commonwealth Bank of Australia (No 2) [2011] FCA 58

Citation:		Yousif v Commonwealth Bank of Australia (No 2) [2011] FCA 58
Parties:		LINDA YOUSIF v COMMONWEALTH BANK OF AUSTRALIA ACN 123 123 124
File number(s):		VID 514 of 2009
Judge:		TRACEY J
Date of judgment:		7 February 2011
Legislation:		Federal Court Rules O 7 r 9, O 37 r 2, O 62 r 45
Cases cited:		Yousif v Commonwealth Bank of Australia [2010] FCAFC 8
Date of hearing:	7 February 2011
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	11
Counsel for the Appellant:	The Appellant did not appear
Counsel for the Respondent:	Ms S Hamade
Solicitor for the Respondent:	HWL Ebsworth Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 514 of 2009

BETWEEN:	LINDA YOUSIF Appellant
AND:	COMMONWEALTH BANK OF AUSTRALIA ACN 123 123 124 Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	7 FEBRUARY 2011
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The Respondent serve on the Appellant the order, made on 1 September 2010 by Registrar Pringle pursuant to O 62 rule 45(3) of the Federal Court Rules, and any bankruptcy notice which the Respondent wishes to serve in the event that the Appellant fails to comply with the order, if she has not, in the meantime, advised the Respondent of her current residential address, by sending the said order and notice by pre-paid post to: PO Box 299 South Morang 3752.
2. The order made on 1 September 2010 by Registrar Pringle and any bankruptcy notice be taken to have been served on the Appellant four working days after service has occurred in accordance with Order 1.
3. The Appellant pay the Respondent’s costs of the motion.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 514 of 2009

BETWEEN:	LINDA YOUSIF Appellant
AND:	COMMONWEALTH BANK OF AUSTRALIA ACN 123 123 124 Respondent

JUDGE:	TRACEY J
DATE:	7 FEBRUARY 2011
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 15 February 2010 a Full Court dismissed an appeal by Ms Linda Yousif against a decision of a single judge: see [2010] FCAFC 8. The Court ordered that she pay the Respondent’s costs of the appeal, to be taxed in default of agreement. On 1 September 2010 a Registrar of the Court ordered, pursuant to O 62 sub-rule 45(3) of the Federal Court Rules (“the Rules”) that Ms Yousif pay the Commonwealth Bank of Australia (“the Bank”) the sum of $75,904.34. On 30 September 2010 the High Court dismissed an application for special leave to appeal from the Full Court’s decision.
2. Prior to the Registrar’s order being made a number of attempts were made, by solicitors acting for the Bank, to effect personal service of a certificate of taxation on Ms Yousif. These attempts involved the attendance of a process server at an address in Reservoir which her former solicitors had provided to the Court in April 2010 when advising that they were ceasing to act. The certificate of taxation was also posted to that address. When attending these premises the process server was advised that Ms Yousif was unknown to the resident.
3. On 30 August 2010 Ms Yousif wrote to the Court saying:

“Also I want to make the court aware that the respondent have try to serve me (sic) with bill of taxation to the wrong address. I only became aware of this through my solicitor David Thompson from Hunt & Hunt who is handling my High Court proceeding ...”

In that letter Ms Yousif advised that her postal address was PO Box 299, South Morang 3752 and that her mobile phone number was 0466 271 047.

4. Following the making of the Registrar’s order unsuccessful attempts were made to serve that order. A process server attended at a second residential address which had been provided to the Court Registry later in the year. The process server was advised that Ms Yousif did not live at the address.
5. Other attempts were also made to bring the Registrar’s costs order to her attention. These included correspondence with the solicitors acting for Ms Yousif in the High Court application, the sending of a copy of the order by post to the post box address which she had provided to the Court and the sending of a text message to the mobile telephone number which she had advised the Court was hers.
6. In these circumstances the Bank has moved the Court for orders that Ms Yousif has received notice of the Registrar’s order or that service of the order be dispensed with or that service be effected by forwarding a copy of the order by post to the solicitors who were acting for Ms Yousif in her High Court application.
7. Although notice of this morning’s hearing was sent to Ms Yousif by e-mail and text messages she failed to appear.
8. Order 37 sub-rules 2(5) and (6) of the Rules relevantly provide:

“(5) Where a person liable to committal or sequestration of his property by way of enforcement of a judgment or order has notice of the judgment or order –

(a) ...
(b) by being notified of the terms of the judgment or order whether by telephone, telegram or otherwise,

The judgment or order may be enforced for committal of that person or by sequestration of his property notwithstanding that service has not been effected in accordance with this rule.

(6) The Court may dispense with service under this rule.”

9. The evidence presented by the Bank in support of its principal application goes no further than establishing that Ms Yousif was aware that attempts had been made to serve Court documents on her. I am not satisfied that it has been established that she has had notice of the terms of the Registrar’s order which was made after she wrote her letter of 30 August 2010. I do not, therefore, consider that it is appropriate for orders to be made under O 37 of the Rules.
10. In my view the appropriate course is that an order of substituted service be made under O 7 rule 9 on the ground that it has proved impractical to serve a copy of the Registrar’s order on Ms Yousif in the manner prescribed by the Rules. In the absence of evidence that the solicitors who acted for Ms Yousif in relation to her High Court application continue to be retained by her, I do not consider that substituted service should be made on the solicitors. Service should be effected by sending a copy of the Registrar’s order by pre-paid post to the postal address which has, most recently, been provided by her to the Registry of the Court, namely PO Box 299 South Morang 3752. Service will be taken to have occurred four working days after a copy of the order has been posted to that address.
11. The Bank foreshadowed that, in the event that Ms Yousif failed to comply with the Registrar’s order, it would wish to serve a bankruptcy notice on her. It sought a similar order for substituted service in respect of any such notice. Unless Ms Yousif has provided the Bank with a current residential address before any such notice is to be served it is appropriate that such service be effected by post to the South Morang post office box.
    

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:

Dated: 7 February 2011