Carter Holt Harvey Woodproducts Australia Pty Ltd v David
[2015] VSC 393
•31 July 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
S CI 2015 00270
| Carter Holt Harvey Woodproducts Australia Pty Ltd (ACN 002 993 106) | Appellant |
| v | |
| Naja David & Ors | Respondent |
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JUDGE: | Bell J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 July 2015 |
DATE OF JUDGMENT: | 31 July 2015 |
CASE MAY BE CITED AS: | Carter Holt Harvey v David |
MEDIUM NEUTRAL CITATION: | [2015] VSC 393 |
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PRACTICE AND PROCEDURE - service and execution of process – substituted service of writ and amended statement of claim – whereabouts of defendant unknown but possibly Ghana – defendant had current connection with Victorian premises, known email addresses and solicitors on the record in related proceeding – whether substituted service order should be made – whether defendant should first attempt service under rules governing service outside of Australia – whether proposed methods of substituted service likely to bring documents to attention of defendant – appeal – whether new evidence should be admitted – Supreme Court (General Civil Procedure) Rules 2005 (Vic) rr 6.10, 7.03, 77.06.
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APPEARANCES: | Counsel | Solicitors |
| For the plaintiff | M G R Gronow | Polczynski Lawyers |
| For the defendant | No appearance |
HIS HONOUR:
This is an appeal under r 77.06 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) by Carter Holt Harvey Woodproducts Australia Pty Ltd against the refusal of Ierodiaconou AsJ to make an order for substituted service of its writ and statement of claim upon the first defendant, Naja David, pursuant to r 6.10. The application was made on summons supported by affidavit evidence that Mr David might be outside Australia and in Ghana, but had a current connection with premises in Melbourne, was known to have several email addresses and was represented in a related proceeding in this court by Hall and Wilcox, solicitors. The summons sought an order for substituted service of the court documents at those premises and addresses and on those solicitors.
In refusing to make the order, the associate justice gave the following reasons:
A. By summons filed 24 June 2015, the Plaintiff seeks an order for substituted service on the First Defendant pursuant to Rule 6.10 of the Supreme Court (General Civil Procedure) Rules 2005 (the Rules). Danielle Gleeson, a solicitor employed by the Plaintiff’s solicitors, affirmed an affidavit on 22 June 2015. The affidavit provides compelling evidence that the First Defendant is no longer residing in Australia but is residing in Ghana. On 16 June 2015, the Plaintiff filed an amended statement of claim pursuant to r 7.01(1) on the basis that the First Defendant was outside Australia.
B. The application for the order for substituted service is dismissed on the basis that the First Defendant is outside of Australia. Rule 7.03 provides that originating process which is to be served outside of Australia need not be served personally as long as it is served in accordance with the law of the country in which service is effected. There is no evidence before me as to service requirements in Ghana.
C. Part 2 of Order 7 of the Rules applies to documents served in a country that is not a signatory to the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Convention), or in such country as the Attorney-General by instrument in the proceeding, specifies. Part 2 will apply to documents served in Ghana as it is not a signatory to the Hague Convention. Rule 7.10 outlines the procedure for service in such countries.
Having examined the evidence, I am not myself able to find that there is compelling evidence that Mr David is no longer residing in Australia but is residing in Ghana. The evidence establishes that his whereabouts are not known and that he might be residing in a place unknown in Ghana.
As her Honour indicated, the amended statement of claim pleaded facts and circumstances that were relevant to service of the court documents outside of Australia pursuant to O 7. If Mr David’s whereabouts in, say, Ghana were actually known, Carter Holt Harvey might well have been able to make out a strong arguable case for service of him outside of Australia under r 7.01(1) because the contract arose in Victoria, the proceeding related to property located here and the alleged debt arose and was payable in Victoria.[1] But the great difficulty with that course was that Mr David’s actual whereabouts were not known.
[1]See generally Williams v The Society of Lloyd’s [1994] 1 VR 274 (McDonald J).
Therefore, in the summons, Carter Holt Harvey sought an order for substituted service pursuant to r 6.10. In the hearing of the summons before her Honour, it filed an affidavit and made submissions in support of the application under that rule. In my view, it was entitled to pursue this course. By relying upon r 7.01 in its pleadings, it had not, as it were, irrevocably elected to seek court permission to serve Mr David in Ghana under that rule. I accept its submission that it pleaded that reliance out of prudence, in case the first defendant could be located in Ghana.
It can be seen that her Honour dismissed the application for substituted service upon the basis that Mr David was outside of Australia. Her Honour appears to have concluded that, in such a case, service must be effected pursuant to O 7 and cannot be effected pursuant to r 6.10. With respect, I cannot agree.
Rule 6.10 provides:
(1) Where for any reason it is impracticable to serve a document in the manner required by these Rules, the Court may order that, instead of service, such steps be taken as the Court specifies for the purpose of bringing the document to the notice of the person to be served.
(2)Where the Court makes an order under paragraph (1), the Court may order that the document be taken to have been served—
(a) on the happening of any specified event; or
(b) on the expiry of any specified time.
(3) The Court may make an order under paragraph (1) notwithstanding that the person to be served is out of Victoria or was out of Victoria when the proceeding commenced.
It can be seen that this rule permits an order for substituted service to be made where for any reason it is impracticable to serve the relevant document in the manner required by the Rules.
Order 7 independently provides for service (other than personal service) where the service is out of Australia. In that connection, r 7.03 provides:
Originating process which is to be served out of Australia need not be served personally as long as it is served in accordance with the law of the country in which service is effected.
Rule 7.10 sets out the general procedure for serving documents in another country It can be seen that this order is enabling and permissive and does not derogate from r 6.10. Order 7 was not applicable in this case because Carter Holt Harvey was not proposing to serve Mr David outside of Australia and his actual whereabouts, inside or outside Australia, were not known.
Rule 6.10 operates according to its terms. It is not qualified by reference to facts and circumstances bringing the case within O 7. It contains no express territorial limitation confining its use to cases where the person to be served in the substituted manner is within Australia or Victoria. There is no basis for implying such a limitation.
The opening words of r 6.10 state this operative condition: ‘Where for any reason it is impracticable to serve a document in the manner required by these Rules…’ The expression ‘for any reason’ is broad and ‘should be given a wide meaning’.[2] What is required is that, for any reason, it is impracticable to serve the document in the manner required by the Rules. Where the court finds this condition to be satisfied and it is proper to do so in the exercise of the court’s discretion, an order for substituted service may be made with respect to a person who is outside of Australia, as Kyrou J did in this court in Talacko v Talacko.[3] Likewise, in Immerman v London Pie Co Pty Ltd[4] Carr J held that the equivalent substituted service rule in the Federal Court of Australia was ‘not to be confined to impracticability within the Commonwealth.’ By parity of reasoning, r 6.10 applies where, as here, the whereabouts of the person to be served are unknown and he or she might be inside or outside of Australia.
[2]Ricegrowers Co-operative Ltd v ABC Containerline NV (1996) 138 ALR 480, 482 (Tamberlin J) (‘Ricegrowers’) citing Paragon Group Ltd v Burnell [1991] Ch R 498, 507 (Lloyd LJ).
[3][2009] VSC 349 (21 August 2009), 14 [46], 29 [90] (Kyrou J).
[4][2000] FCA 97 (11 February 2000) [17].
I note that, in the related proceeding, Randall AsJ made a substituted service order in favour of the liquidators of Mr David’s company, Amerind Pty Ltd (in liquidation), in similar circumstances. It is unclear why the liquidators were able to obtain a substituted service order against Mr David in that proceeding yet Carter Holt Harvey was not able to do so in this proceeding.
The mere fact that a person is outside of Australia is not by itself sufficient to make service ‘impracticable’ for the purposes of r 6.10. Otherwise parties could apply for substituted service in circumstances covered by, and in order to avoid, the specific rules governing service of documents outside of Australia. As explained by Austin J in Australian Securities and Investments Commission v Sweeney (No 2),[5] there is a discretionary principle that parties are not ‘permitted to use substituted service as a means of sidestepping the obstacles to personal service abroad’. Mondial Trading Pty Ltd v Inter Ocean Marine Transport Inc[6] was a case where, in the exercise of the court’s discretion, Dawson J refused to permit substituted service on a party outside of Australia because the applicant had not first attempted to obtain and enforce an order for service outside of Australia.
[5](2001) 38 ACSR 743, 756 [40]; see also Laurie v Carroll (1958) 98 CLR 310, 325 (Dixon CJ, Williams and Webb JJ) and Ricegrowers (1996) 138 ALR 480, 483 (Tamberlin J).
[6](1985) 65 ALR 155, 157.
The present case is distinguishable. Here the evidence establishes that it is impracticable to serve Mr David personally. His current location is unknown. He does not appear to be residing at any of the Australian addresses previously given by him to the Carter Holt Harvey. While there is some evidence that he may well have been in Ghana in 2014, the evidence does not establish that he presently is so. If he is in Ghana, the evidence does not establish where in Ghana he is likely to be. This is not a case where a party is attempting to use the substituted service rule in order to avoid the requirements of the rule governing service outside of Australia.
As the associate justice stated, r 7.03 provides that a defendant located overseas need not be served personally if the law applicable to service in the relevant country does not require personal service. A procedure for effecting foreign service is laid down in r 7.10 and following. In the application before her Honour, there was no evidence of the legal requirements in Ghana for the service of court documents. However, even if the law of Ghana were shown to permit non-personal service, it would still be impracticable under r 6.10 to serve Mr David when his current location (whether somewhere in Ghana or elsewhere) was unknown.
If Carter Holt Harvey were using the substituted service rule to avoid the service outside Australia rule, that might have been a discretionary reason for refusing an order for substituted service. To repeat, it was not doing so. Therefore, once r 6.10 was engaged, the principal matter for the court to consider in the facts and circumstances that were here established was whether steps could be taken for ‘the purpose of bringing the document to the notice of the person to be served’.[7] If no such steps could be identified because Mr David might be in Ghana and his actual whereabouts and domestic connections were unknown, that too might have been a discretionary reason for refusing an order for substituted service. But the steps proposed were very likely to bring the court documents to his attention since they involved service at premises with which he had a current connection, at his known email addresses and on the solicitors who were acting for him in the related matter.
[7]Supreme Court (General Civil Procedure) Rules 2005 r 6.10(1).
In connection with that related matter, it has been shown by subsequent evidence that Hall & Wilcox have filed an appearance on behalf of Mr David in the proceeding brought by the liquidators. Pursuant to r 77.06.9(3), the court can and will receive this later evidence on the hearing of this appeal. I will exercise my discretion to do so because the evidence relates to a relevant fact that had not occurred at the time of the hearing of the summons by the associate justice. This evidence establishes even more clearly that serving the documents on the solicitors will very likely have the effect to bringing them to Mr David’s attention.
For these reasons the appeal will be allowed. Under r 77.06.9(1), on appeal the court has all the powers of the associate judge. The court will exercise its discretion to make a substituted service order against Mr David pursuant to r 6.10 in the form proposed by Carter Holt Harvey and described above.
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