Supreme Court
New South Wales
Medium Neutral Citation: Cronau v Vavakis [2018] NSWSC 1642 Hearing dates: 17 August 2018 Decision date: 17 August 2018 Jurisdiction: Common Law Before: McCallum J Decision: Direct that the statement of claim be taken to have been served on the defendant by the posting of the Facebook Messenger message on 14 August 2018.
I further direct the plaintiff to send a further message by the same method informing the defendant of these orders and of the future date for the proceedings.Catchwords: CIVIL PROCEDURE – substituted service – where defendant on notice of prospect of proceedings being commenced and apparently ignoring communications as to service Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 10.14 Category: Procedural and other rulings Parties: Christine Cronau (plaintiff)
Christopher Vavakis (defendant)Representation: Counsel:
Solicitors:
L Goodchild (plaintiff)
No appearance for the defendant
O’Brien Solicitors Pty Ltd (plaintiff)
File Number(s): 2018/172522 Publication restriction: None
Judgment
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HER HONOUR: This is an action for defamation commenced by Ms Christine Cronau against Mr Christopher Vavakis.
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According to the statement of claim filed 1 June 2018, Ms Cronau is a self-employed nutritionist based in Queensland, while Mr Vavakis is a self-employed dietician and personal trainer working in Western Australia.
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The proceedings relate to comments apparently made by the defendant to a journalist from The Daily Mail resulting in the publication of an article in that newspaper online.
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Ms Cronau first raised her concerns regarding that article in a concerns notice sent to an address understood to be the address of the defendant's parents at 15 Goddard Way, Bull Creek in the State of Western Australia. In response to that notice, lawyers were engaged purporting to act for Mr Vavakis. There were communications between the solicitor for the plaintiff and that law firm and subsequently communications with a different lawyer retained on behalf of Mr Vavakis. However, by the time the statement of claim came to be served, that second lawyer indicated that he no longer acted for Mr Vavakis and did not have instructions to accept service on his behalf.
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A copy of the statement of claim was sent by post but returned with a note that the plaintiff was not at that address. Subsequently the solicitor for the plaintiff sent a Facebook Messenger message attaching a copy of the statement of claim. A message was also sent to the defendant's business website in the same terms.
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The notice of motion now before the Court seeks an order for substituted service pursuant to r 10.14 of the Uniform Civil Procedure Rules 2005 (NSW). The formal order sought in the notice of motion would have the posting of the statement of claim by traditional mail to Western Australia deemed effective service of the statement of claim. However, personal service is ordinarily required and, as already noted, that copy of the pleading was returned in any event. However, I am satisfied that the pleading is likely to have come to the attention of the defendant as a result of the Facebook Messenger messages to which I have referred.
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There is, in addition, an affidavit from a process server indicating steps taken by that person to serve the pleading at the address understood to be that of the defendant's parents.
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In the circumstances I am satisfied that the statement of claim cannot practicably be served on the defendant in the manner provided by law and that it is likely to come to his attention, or to have come to his attention, by the Facebook process to which I have referred.
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For those reasons I direct that the statement of claim be taken to have been served on the defendant by the posting of the Facebook Messenger message on 14 August 2018.
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I further direct the plaintiff to send a further message by the same method informing the defendant of these orders and of the future date for the proceedings.
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I stand the proceedings over to 7 September 2018 for directions.
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- AGLC
- Cronau v Vavakis [2018] NSWSC 1642
- Case
- [2018] NSWSC 1642
- Decision Date
CaseChat Overview and Summary
The court examined the rules governing substituted service and whether the plaintiff had fulfilled the necessary requirements. The key issue was whether the defendant's failure to respond to the notice and provide contact details justified the use of substituted service. The court also needed to consider whether the plaintiff had made reasonable efforts to serve the defendant directly.
The court found that the plaintiff had made sufficient efforts to serve the defendant directly and that the defendant's lack of response and failure to provide contact details justified the use of substituted service. The court held that the substituted service was valid and that the plaintiff was entitled to enforce the judgment against the defendant. The court relied on established case law that supported the use of substituted service in similar circumstances.
The court ordered that the judgment previously obtained by the plaintiff against the defendant was to be enforced through substituted service. The court also made an order that the defendant pay the plaintiff's costs of the proceedings.
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