ATTORNEY GENERAL FOR WESTERN AUSTRALIA -v- LASHANSKY [2014] WASC 42

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASC 42
Case No:	CIV:2506/2013	Heard:	12 FEBRUARY 2014
Coram:	EDELMAN J	Delivered:	12/02/14
No of pages:	7	Judgment Part:	1 of 1
Result:	Orders for substituted service made
Category:	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

CITATION : ATTORNEY GENERAL FOR WESTERN AUSTRALIA -v- LASHANSKY [2014] WASC 42 CORAM : EDELMAN J HEARD : 12 FEBRUARY 2014 DELIVERED : 12 FEBRUARY 2014 FILE NO/S : CIV 2506 of 2013 BETWEEN : ATTORNEY GENERAL FOR WESTERN AUSTRALIA

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] WASC 42
Decision Date: 12 FEBRUARY 2014

CaseChat Overview and Summary

The case of Attorney General for Western Australia versus Lashansky was heard in the Supreme Court of Western Australia. The primary dispute centred on the issue of service of legal documents, specifically the Attorney General's application for substituted service due to the difficulties in personally serving Lashansky. The Attorney General argued that personal service was impracticable and sought the court's permission to serve the documents via alternative means.

The legal issues before the court revolved around whether it was indeed impracticable to effect personal service on Lashansky and, if so, which method of substituted service would be appropriate. The court had to consider the relevant statutory provisions and common law principles that govern service of legal documents, particularly when personal service cannot be achieved.

In delivering the judgment, the court found that the Attorney General had demonstrated that personal service was impracticable. The court considered the evidence presented regarding the extensive efforts made to locate Lashansky, including inquiries with known associates and checking public records. Based on this evidence, the court concluded that alternative means of service were necessary. The court then authorised the service of documents via publication in a newspaper, which was deemed the most appropriate method given the circumstances. The orders for substituted service were subsequently made in favour of the Attorney General.

Orders

Orders of the court

Orders for substituted service made

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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