Attorney General for Western Australia v Lashansky
[2014] WASC 42
•12 FEBRUARY 2014
ATTORNEY GENERAL FOR WESTERN AUSTRALIA -v- LASHANSKY [2014] WASC 42
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 42 | |
| Case No: | CIV:2506/2013 | 12 FEBRUARY 2014 | |
| Coram: | EDELMAN J | 12/02/14 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Orders for substituted service made | ||
| B | |||
| PDF Version |
| Parties: | ATTORNEY GENERAL FOR WESTERN AUSTRALIA ROBERT JAMES LASHANSKY |
Catchwords: | Practice and procedure Application for substituted service Whether impracticable to effect personal service Appropriate order for substituted service |
Legislation: | High Court Rules 1952 (Cth) Rules of the Supreme Court, 1883 Rules of the Supreme Court 1971 (WA) |
Case References: | Chappell v Coyle (1985) 2 NSWLR 73 Foxe v Brown (1984) 58 ALR 542 Jay v Budd [1898] 1 QB 12 Marconi Communications International Ltd v PT Pan Indonesia Bank Ltd TBK [2004] EWHC 129 (Comm) Paragon Group Ltd v Burnell [1991] 2 All ER 388 Porter v Freudenberg [1915] 1 KB 857 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
ROBERT JAMES LASHANSKY
Respondent
Catchwords:
Practice and procedure - Application for substituted service - Whether impracticable to effect personal service - Appropriate order for substituted service
Legislation:
High Court Rules 1952 (Cth)
Rules of the Supreme Court, 1883
Rules of the Supreme Court 1971 (WA)
Result:
Orders for substituted service made
Category: B
Representation:
Counsel:
Applicant : Mr C Beetham
Respondent : No appearance
Solicitors:
Applicant : State Solicitor for Western Australia
Respondent : No appearance
Cases referred to in judgment:
Chappell v Coyle (1985) 2 NSWLR 73
Foxe v Brown (1984) 58 ALR 542
Jay v Budd [1898] 1 QB 12
Marconi Communications International Ltd v PT Pan Indonesia Bank Ltd TBK [2004] EWHC 129 (Comm)
Paragon Group Ltd v Burnell [1991] 2 All ER 388
Porter v Freudenberg [1915] 1 KB 857
- EDELMAN J: (This judgment was delivered orally at the hearing on 12 February 2014 and has been edited for grammar and syntax).
1 This is an application by the Attorney General for substituted service of an originating motion and affidavit upon Mr Lashansky. This application was necessarily made in the absence of Mr Lashansky.
2 Order 72 r 4 of the Rules of the Supreme Court 1971 (WA) provides as follows:
Substituted service
(1) Where by these rules personal service of a document is required and it appears to the Court that personal service of such document on a person required to be served is impracticable, the Court may order that the document be served on that person by substituted service.
(2) An application for an order for substituted service shall be supported by an affidavit stating the facts on which the application is founded.
(3) Substituted service pursuant to an order under this rule is effected by taking such steps as the Court directs to bring the document to the notice of the person to be served, and has the same operation as personal service.
3 There are two enquiries required by O 72 r 4 before a requirement for personal service can be substituted. The first is whether personal service is 'impracticable'.
4 If personal service is 'impracticable' the second enquiry is the form of substituted service 'to bring the document to the notice of the person to be served'.
5 I turn first to the question of impracticability.
6 Counsel for the Attorney General relied upon a number of English and Australian decisions concerning the approach to be taken to whether service is 'impracticable'. The Western Australian rule was developed from the approach taken to the English Rules of Court which permitted substituted service where it appeared to the court that the plaintiff was 'from any cause unable to effect prompt personal service'.1 The cases based upon that rule focused upon whether it could 'be clearly shown that the plaintiff is in fact unable to effect personal service'.2 The requirement of 'inability' was also described as 'practical impossibility'.3
7 Both the English and Australian approach to substituted service are now more liberal.
8 In Foxe v Brown4Mason J, sitting at first instance in the High Court of Australia, considered the meaning of O 9 r 2(2) of the High Court Rules 1952 (Cth), concerning substituted service. As far as I can ascertain, the rule, as it was then, provided as follows:
Where it appears to the Court or a Justice that the plaintiff is, from any cause, unable to effect prompt personal service, the Court or Justice may make such order for substituted or other service, or for the substitution for service of notice by advertisement or otherwise, as is just.
9 Justice Mason did not read 'unable' literally. His Honour explained that:
In general, for an order for substituted service to be made it must be shown: (a) that the plaintiff, using reasonable effort, is unable to effect personal service; and (b) that the method of substituted service requested is one which is likely to cause the writ to come to the knowledge of the defendant.
10 The requirement of inability after reasonable effort is less strict than strict inability or 'practical impossibility'. It appears to mean a lack of success after reasonable effort.
11 In England, the Rules of the Supreme Court were also amended to provide for a requirement for substituted service that one of the prescribed methods was 'impracticable'.5 As Lloyd LJ explained in Paragon Group Ltd v Burnell,6 the question is now short and simple. There is no need to gloss the word 'impracticable' other than to say that it focuses attention upon the means which have been taken to effect personal service and whether, in the circumstances of the case having regard to those means taken, personal service is now impracticable.
12 In this case I am satisfied based on the affidavit from a lawyer from the State Solicitor's Office that it is impracticable for Mr Lashansky to be served personally. In particular, the steps which have been taken by the State Solicitor's Office, as set out in the supporting affidavit to this motion, are as follows below.
(i) On 16 October 2013, two officers from the State Solicitor's Office went to an address in Bicton to serve copies of the documents. This address was listed on the electoral roll as the residence of Mr Lashansky. The officers spoke to a female at this address who advised that Mr Lashansky had not resided at that address for a number of months. The State Solicitor's Office later wrote to the proprietors of the Bicton address, who replied to the effect that Mr Lashansky did not live there.
(ii) On 16 October 2013, an officer from the State Solicitor's Office telephoned the contact number for an office space in West Perth which Mr Lashansky had previously used as an address for service in a different matter. The officer spoke to a male who said Mr Lashansky had last used office space at that address approximately 6 months ago. The State Solicitor's Office later wrote to the proprietors of the business at the West Perth Address, who replied that they did not know Mr Lashansky's current residence or whereabouts.
(iii) On 17 October 2013, an officer from the State Solicitor's Office carried out a Certificate of Title search on the surname 'Lashansky'. This search returned no results.
(iv) On 17 October 2013, an officer from the State Solicitor's Office conducted a Google internet search on the name 'Robert Lashansky'. That search returned a purported business address for Mr Lashansky in Belmont. On 18 October 2013, officers from the State Solicitor's Office went to the Belmont Address. The officers knocked on the door several times but it was not answered.
(v) On 17 October 2013, an officer from the State Solicitor's Office confirmed with the Central Office of this Court that the last address for service provided by Mr Lashansky in any matter in this Court was an address in Wembley. On 18 October 2013, officers from the State Solicitor's Office went to the Wembley Address. The officers spoke to a female at the address who informed the officers that Mr Lashansky was not there but was a family friend of the owner of the premises (who was on leave). Another officer of the State Solicitor's Office later wrote to the proprietor of the business at the Wembley Address, Mr Greenwood, who replied that while he did not know Mr Lashansky's current residence or whereabouts, Mr Lashansky attended the Wembley Address 'irregularly'.
(vi) On 18 November 2013, officers from the State Solicitor's Office attended the delivery by the Court of Appeal of judgment in another matter in which Mr Lashansky was the appellant. The officers of the State Solicitor's Office went to the public space outside the Supreme Court to serve Mr Lashansky with the document. The officers were unable to serve Mr Lashansky as he did not attend Court to receive the judgment in that matter.
13 I turn then to the second enquiry. This is the form by which substituted service should take. Counsel for the Attorney General made submissions based upon the assumption, derived from cases where the rule in question was not always identical, that the means of substituted service should only be made where the substituted service is likely to bring the document to the respondent or to his or her attention.7 I proceed, without deciding, on this basis.8 I note, however, that the words of the sub-rule do not necessarily appear to require any particular degree of likelihood of notice. It is possible that the words 'taking such steps as the Court directs to bring the document to the notice of the person to be served' could be construed as permitting substituted service by a means which, although not futile, involves the best reasonable steps in the circumstances which could be taken to bring notice to the person to be served.
14 Counsel for the Attorney General sought an order for substituted service requiring the following steps to be taken:
(i) delivering copies of the documents to Mr Greenwood, the proprietor of the Wembley Address; and
(ii) publishing the originating motion in The West Australian newspaper, together with information that the accompanying affidavit can be inspected at the offices of the State Solicitor.
15 A letter from Mr Greenwood is attached to the affidavit accompanying this motion. Mr Greenwood says that:
[u]ntil the recent departure of an employee of my firm who was assisting Mr Lashansky with an agricultural project, Mr Lashansky used to attend my offices on a virtually daily basis. Unfortunately, since the departure of my former employee, Mr Lashansky attends only irregularly.
16 I am satisfied that the combination of the two steps ((i) and (ii) above) is likely, albeit potentially with some delay, to bring the documents to the attention of Mr Lashansky. It is appropriate that the service of the documents upon Mr Greenwood should be together with a covering letter directing Mr Greenwood to give the documents to Mr Lashansky when they next meet and a copy of these reasons.
1Rules of the Supreme Court, 1883 Order IX, rule 2.See further Jay v Budd [1898] 1 QB 12, 16 (Lord Halsbury LC).
2Porter v Freudenberg [1915] 1 KB 857, 888 (the Court).
3Porter v Freudenberg [1915] 1 KB 857, 889 (the Court).
4Foxe v Brown [1984] HCA 69; (1984) 58 ALR 542, 546.
5 The English Rules of Court concerning substituted servicehave since been further liberalised to focus upon whether there is a 'good reason': Civil Procedure Rule 6.15. See Marconi Communications International Ltd v PT Pan Indonesia Bank Ltd TBK [2004] EWHC 129 (Comm); [2004] 1 Lloyd's Rep 594 (David Steel J).
6Paragon Group Ltd v Burnell [1991] 2 All ER 388, 390.
7Foxe v Brown (1984) 58 ALR 542, 546 - 548.
8 See also Chappell v Coyle (1985) 2 NSWLR 73, 85 (Yeldham J).
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