Council of the City of Botany Bay v Tripolitis
[2016] NSWLEC 85
•14 July 2016
Land and Environment Court
New South Wales
Medium Neutral Citation: Council of the City of Botany Bay v Tripolitis [2016] NSWLEC 85 Hearing dates: 14 July 2016 Date of orders: 14 July 2016 Decision date: 14 July 2016 Jurisdiction: Class 4 Before: Pepper J Decision: See orders at [23].
Catchwords: PROCEDURE: whether second respondent correctly served with originating process – whether personal service required – whether proceedings could be discontinued as against second respondent – hearing vacated and matter adjourned. Legislation Cited: Botany Local Environmental Plan 2013
Environmental Planning and Assessment Act 1979, s 121B
Uniform Civil Procedure Rules 2005, r 10.20(2)(a)Cases Cited: Ross v Lane Cove Council [2014] NSWCA 50; (2014) 86 NSWLR 34 Category: Procedural and other rulings Parties: Council of the City of Botany Bay (Applicant)
John Tripolitis (First Respondent)
Robyn Tripolitis (Second Respondent)Representation: Counsel:
Solicitors:
Mr Shneider (solicitor) (Applicant)
No appearance (First Respondent)
No appearance (Second Respondent)
Houston Dearn O’Connor (Applicant)
N/A (First Respondent)
N/A (Second Respondent)
File Number(s): 2016/151803
Judgment
The Second Respondent in Civil Enforcement Proceedings Has Not Been Properly Served
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This judgment sets out in full the reasons of the Court for vacating the final hearing of this matter on the day it was listed to be heard. The orders vacating the hearing and adjourning the proceedings were made on that day but fulsome reasons were not given due to time constraints.
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By summons filed 23 March 2016, the Council of the City of Botany Bay (“the council”), sought declaratory and injunctive relief in respect of a failure by the first respondent, Mr John Tripolitis, and the second respondent, Mrs Robyn Tripolitis, to comply with an order issued by the council on 22 October 2013, under s 121B (“the 121B order”) of the Environmental Planning and Assessment Act 1979 (“EPAA”).
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The order was to cease using premises located at Lot B, DP 359736, 64 Pemberton Street, Botany (“the premises”) as a warehouse for the distribution of clothing, a use prohibited in Zone B4 Mixed Use under the Botany Local Environmental Plan 2013 (“the LEP”).
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The final hearing of the matter was listed for 14 July 2016 but, because of an irregularity in the service of Mrs Tripolitis of the originating process, it could not proceed and had to be adjourned.
Personal Service is Required on Mrs Tripolitis
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Pursuant to r 10.20(2)(a) of the Uniform Civil Procedure Rules 2005 (“UCPR”), personal service is required of any originating process in this Court – which includes the summons commencing these proceedings – on a party:
10.20 Personal service required only in certain circumstances
…
(2) Except as otherwise provided by these rules:
(a) any originating process, and any order for examination or garnishee order, in proceedings in the Supreme Court, the Industrial Relations Commission (including the Commission when constituted as the Industrial Court), the Land and Environment Court, the District Court or the Dust Diseases Tribunal must be personally served…
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Rule 10.21(1) of the UCPR describes what form the personal service must take in the absence of violence or threat thereof to the person attempting service:
10.21 How personal service effected generally
(1) Personal service of a document on a person is effected by leaving a copy of the document with the person or, if the person does not accept the copy, by putting the copy down in the person’s presence and telling the person the nature of the document.
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Accordingly, a copy of the summons was required to be left with Mrs Tripolitis or put down in her presence.
Evidence as to Service
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On 22 April 2016 I determined, in my capacity as List Judge, that service of the summons and points of claim on both Mr and Mrs Tripolitis had been effected. In expressing this view, I had regard to oral submissions from the legal representative from the council and, critically, an affidavit of service of Mr Thomas Pfeifle, a process server, sworn 4 April 2016. As it transpires, the affidavit was misread.
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On 22 April 2016, the Court proceeded to make the usual orders for the preparation of the matter for hearing. On 24 June 2016 the matter was subsequently set down for hearing on 14 July 2016 by the Assistant Registrar.
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The court orders were not complied with by the respondents. Indeed, the respondents have to date not participated in any aspect of the proceedings. It therefore came as no surprise that they did not attend Court when the matter was called on for hearing at 10am on 14 July 2016.
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Because the proceedings were therefore likely to be ex parte, the Court was required to be satisfied that all of the documents that the council relied upon to found its claim for relief had been served on the respondents and that they had been notified of the final hearing date.
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The council relied, in part, on Mr Pfeifle’s affidavit to demonstrate that Mr and Mrs Tripolitis had been served with the documents that it would be seeking to rely upon during the hearing. Accordingly, the Court had cause to re-read his affidavit.
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Upon further study, it became tolerably and regrettably clear to the Court that there was in fact insufficient evidence of the personal service of Mrs Tripolitis of the originating summons, or indeed proper service of any of the documents referred to in Mr Pfeifle’s affidavit.
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In his affidavit, Mr Pfeifle deposed to the fact that on 3 April 2016 he gave to a man he believed to be Mr John Tripolitis a copy of the summons, the points of claim and an affidavit of Mr Tony de Kievit, a Development Control Officer employed by the council, sworn on 15 March 2016 (“the documents”). The affidavit, it is fair to say, is not drafted with pellucidity. For example, it does not state what documents he gave to the person specified on that date. Nor is a copy of those documents annexed to his affidavit, as is customary.
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Although Mr Pfeifle did not specify what “documents” he gave that person on that date, it is nevertheless reasonable to infer, reading the totality of his affidavit, that they were the same documents that he tried to serve on that same person on 30 March 2016.
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Mr Pfeifle deposed to the fact that he believed that man to be Mr Tripolitis because he was the same individual who had been located by Mr Pfeifle both at the premises (of which he is a registered owner and the sole director of the company operating from the premises) and at the only known residential address of Mr Tripolitis, and was a person located at a residential address where mail was being sent to Mr and Mrs Tripolitis. Mr Pfeifle therefore made the not unreasonable inference that the person whom he served the documents was Mr Tripolitis. This was all but confirmed when Mr Pfeifle put his belief to the person in question, who responded with, “That’ll be right”. It is also confirmed by the fact that Mr Tripolitis is the sole director of Tightrope Retail Pty Ltd (“Tightrope”), a company located at the premises, and the fact that Mr Tripolitis lives at the residential address attended upon by the process server (as evidenced by both a development application in respect of the premises listing Mr Tripolitis at that residential address and a current ASIC company extract listing his residential address in his capacity as the sole director and secretary of the company).
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Consequently, I am satisfied that Mr Tripolitis has been served with the documents referred to in Mr Pfeifle’s affidavit, including the summons.
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However, the affidavit went on to state that Mr Pfeifle “left the documents for him and Robyn Tripolitis on the retaining wall”. But Mrs Tripolitis was not present on 3 April 2016 when the documents were served on Mr Tripolitis.
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It should be noted at this stage that the relationship between Mr and Mrs Tripolitis is not known. They may be married, they may be siblings, or they may be in some other familial formation, for example, mother and son. Indeed it is not even certain, but for the fact that mail addressed to her was located at the same residential address as Mr Tripolitis, that Mrs Tripolitis resides at the same address as Mr Tripolitis.
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In any event, this does not matter. This is because Mrs Tripolitis was required to be served personally by the council and she plainly had not been. This means that Mrs Tripolitis had not been served as required under the UCPR and the hearing could not proceed against her.
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While the council briefly contemplated discontinuing the proceedings against Mrs Tripolitis in order for the matter to be heard on the date it was listed, it was agreed that this was not possible because she had a continuing proprietary interest in the subject-matter of the proceedings (she is a registered owner of the premises and the s 121B order was issued to her in this capacity) and she was therefore required to be joined as a party to the proceedings (Ross v Lane Cove Council [2014] NSWCA 50; (2014) 86 NSWLR 34).
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In the result, the hearing was vacated and the matter was set down for further directions, including the potential hearing of a notice of motion to be filed by the council for an order for substituted service in respect of Mrs Tripolitis.
Orders
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The orders of the Court are therefore as follows:
the hearing is vacated;
the matter is set down for further directions and the hearing of any notice of motion filed by the council for an order for substituted service, at 9.15am on 19 July 2016 before Pepper J; and
the applicant is to inform the first and second respondent of these orders.
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Decision last updated: 15 July 2016
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