Ford v Bruce - [2021] WASC 222

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   FORD -v- BRUCE [2021] WASC 222
CORAM:   REGISTRAR WHITBREAD
HEARD:   8 JULY 2021
DELIVERED          :   8 JULY 2021
PUBLISHED           :   9 JULY 2021
FILE NO/S:   CIV 1741 of 2020
BETWEEN:   GEOFFREY BRENDAN FORD
Plaintiff
AND
LEILA BRUCE
First Defendant
LESLEY ANNE WILKINSON
Second Defendant

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:

Plaintiff	:	Mr M J Bassett-Scarfe
First Defendant	:	No appearance
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	Peel Legal Barristers & Solicitors
First Defendant	:	No appearance
Second Defendant	:	No appearance

Case(s) referred to in decision(s):

Attorney General for Western Australia v Lashansky [2014] WASC 42
Foxe v Brown (1984) 58 ALR 542
Paragon Group Ltd v Burnell [1991] 2 All ER 388
Porter v Freudenberg [1915] 1 KB 857

REGISTRAR WHITBREAD:

(This judgment was delivered orally at the hearing on 8 July 2021 and has been edited for grammar and syntax).

This is an application by the plaintiff for substituted service of a writ of summons and any substituted service orders upon the second defendant, Ms Wilkinson. This application was necessarily made in the absence of Ms Wilkinson.
The action seeks to prove a will dated 6 August 2008 given that the plaintiff has a reasonable suspicion that the deceased did not have capacity at the time of making a later will dated 3 December 2012. The writ has been served on the first defendant who is legally represented and has filed a notice abiding the decision of the court. The plaintiff contends that the estate is at risk without the appointment of a personal representative as it is six years since the deceased died and it is prejudicial for there to be any further delay in the progress of the action. The plaintiff submits that he has done everything which could reasonably be expected of him to try and effect personal service on Ms Wilkinson.
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.
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'.
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'.
I turn first to the question of impracticability.
There are a number of relevant 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'; see Rules of the Supreme Court 1883 Order IX, rule 2. 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'; Porter v Freudenberg [1915] 1 KB 857, 888. The requirement of 'inability' was also described as 'practical impossibility'; see Porter v Freudenburg (889).
Both the English and Australian approach to substituted service are now more liberal; see Attorney General for Western Australia v Lashansky [2014] WASC 42 [7] Edelman J.
In Foxe v Brown (1984) 58 ALR 542 [546], Mason 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. That 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.
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.
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.
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'. As Lloyd LJ explained in Paragon Group Ltd v Burnell [1991] 2 All ER 388, 390 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.
In this case I am satisfied, based on the affidavits of:
(i)Geoffrey Ford (sworn on 3 September 2020);
(ii)Jacqualine Lee Hyland (sworn on 22 April 2021);
(iii)Diane Martin (sworn o9n 2 September 2020);
(iv)Laura Andrew (sworn on 2 September 2020);
(v)Mariza Firmansjah (sworn on 1 September 2020): and
(vi)Matthew Jaime Bassett-Scarfe (sworn on 3 September 2020, 28 May 2021, 9 June 2021 and 21 June 2021)
that it is impracticable for the second defendant to be served personally. In particular, the steps which have been taken by the plaintiff, as set out in the supporting affidavits to this motion, are as follows:
(i)The last address the plaintiff had for Ms Wilkinson was in Ravenswood. On 11 October 2019 the plaintiff's solicitors sent a letter to that address (regarding consent to the application for letters of administration), which letter was returned to sender marked 'unknown' on 25 October 2019.
(ii)On 12 December 2019 Mariza Firmansjah received a telephone call from a Pastor Sheryl Gangell from the Pinjarra Family Church on behalf of the second defendant. Pastor Gangell informed the plaintiff's solicitors that the second defendant had 'a mental problem', 'had been living in a car', and 'did not want to be found'.
(iii)On 30 November 2020, 21 December 2020 and 7 January 2021, Ms Hyland went to an address in Safety Bay to serve copies of the documents. This address was listed on the electoral roll as the residence of a Lesley Anne Wilkinson after a search against the names Lesley Anne Wilkinson also known as Lesley Anne Ford (the second defendant's previous name) by Mr Bassett‑Scarfe. There was no one home at that address on any of these occasions.
(iv)On 6 February 2021 Ms Hyland attended at an address in Pinjarra which had also been identified in the electoral roll search. On that occasion a neighbour informed Ms Hyland that the lady in residence was a Lesley Anne Wilkinson and that she was at the shops. Ms Hyland waited for 20 minutes but no one returned.
(v)On 8 February 2021 Ms Hyland returned to the Pinjarra address and spoke to the lady in residence. She informed Ms Hyland that she was not the Ms Wilkinson being sought but she knew the Ms Wilkinson being sought. She knew that the correct Ms Wilkinson was homeless and frequently visits the police station in Pinjarra.
(vi)On 8 February 2021 Ms Hyland attended the Pinjarra police station where she left a card for Ms Wilkinson to contact her. As at the date of her affidavit, Ms Hyland had heard nothing since.
I turn then to the second enquiry. This is the form by which substituted service should take. The fundamental issue, derived from cases where the rule in question was not always identical, is whether 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; Foxe v Brown (546 - 548). I proceed, without deciding, on this basis. I note that the words of the sub‑rule do not necessarily appear to require any particular degree of likelihood of notice; see Attorney General for Western Australia v Lashansky [13]. 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.
Counsel for the plaintiff sought an order for substituted service in the following terms:
Service of a copy of this order and a copy of the writ of summons in this action duly sealed with the seal of the Court by publication of an advertisement in the form contained in the schedule hereto once in the West Australian Newspaper shall be good and sufficient service of the writ on the defendant.
The affidavits filed in support of the application do indicate some contact with Pastor Gangell from the Pinjarra Family Church on behalf of Ms Wilkinson. For that reason I conclude that, given that the evidence points to Ms Wilkinson living a homeless lifestyle, service should also be effected by sending the writ and a copy of these orders by registered post to Pastor Gangell as that may also bring the matter to Ms Wilkinson's attention.
I am satisfied that the combination of the above two steps is likely, albeit potentially with some delay, to bring the documents to the attention of Ms Wilkinson. It is appropriate that the service of the documents upon Pastor Gangell should be together with a covering letter directing Pastor Gangell to give the documents to Ms Wilkinson when they next meet together with a copy of these reasons.
As requested by the plaintiff, the costs of this application are reserved.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RD
Associate to Registrar Whitbread
9 JULY 2021