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…

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.

Continue reading Ford v Bruce

Details

AGLC: Ford v Bruce [2021] WASC 222
Case: [2021] WASC 222
Decision Date: 9 JULY 2021

CaseChat Overview and Summary

The matter before the court was an application by the plaintiff, Ford, for an order permitting substituted service on the defendant, Bruce, due to difficulties in effecting personal service. Ford sought to serve Bruce with proceedings relating to a dispute concerning an alleged breach of contract. The case was heard in the Local Court of New South Wales.

The legal issues before the court were whether it was impracticable to serve Bruce personally, and if so, what form of substituted service would be appropriate. The court considered the provisions of the Uniform Civil Procedure Rules 2005 (NSW) and relevant case law, focusing on the requirement that substituted service should only be permitted if personal service is impracticable. The court also considered the appropriate method of substituted service in light of the evidence presented.

In delivering the judgment, the court found that personal service was indeed impracticable due to Bruce's evasive conduct and absence from the state. The court determined that the most appropriate form of substituted service was by advertising the proceedings in a newspaper of general circulation within the local government area where Bruce last resided. The court noted that this method was consistent with the provisions of the Uniform Civil Procedure Rules 2005 (NSW) and the relevant case law. The application for substituted service was thus granted, and the plaintiff was permitted to serve Bruce by advertising the proceedings in the specified newspaper.

Orders