Graves v West
[2013] NSWSC 641
•24 May 2013
Supreme Court
New South Wales
Medium Neutral Citation: Graves v West [2013] NSWSC 641 Hearing dates: 24 May 2013 Decision date: 24 May 2013 Jurisdiction: Common Law Before: Davies J Decision: 1. Judgment for the Plaintiff with damages to be assessed.
2. Order that, upon filing of a Notice of Ceasing to Act by the Defendant's solicitor, service generally is taken to be effected when documents are forwarded to the Defendant via the following methods:
(a) An email sent by the Plaintiff's legal representatives to the email address [email protected]; or
(b) An email sent by Lawrence John Graves from his Linked-ln account as a Linked-ln "In-Mail" to the Linked-ln account of Richard Ashley West.
3. A copy of this order be served on the Defendant in accordance with order 2 above and on the Defendant's solicitor within 7 days.
4. Defendant to pay the Plaintiff's costs of the Motion for summary judgment on an indemnity basis.
5. Defendant to pay Plaintiff's costs on the ordinary basis in relation to the Notice of Motion for substituted service.
Catchwords: PROCEDURE - summary judgment - where no traverse of pleading concerning liability - judgment with damages to be assessed - substituted service - where solicitor ceases to act and has only an email address of party - service may be effected by email Legislation Cited: Uniform Civil Procedure Rules Category: Interlocutory applications Parties: James John Graves (Plaintiff)
Richard West (Defendant)Representation: Counsel:
P Macarounas (Plaintiff)
No appearance (Defendant)
Solicitors:
Bradfield & Scott Lawyers (Plaintiff)
Grahame W Howe & Co (Defendant)
File Number(s): 2011/413315 & 2012/130062
Judgment
The Plaintiff was badly injured by having been assaulted on the football field during a game on 21 May 2011. He suffered severe injuries to his jaw and teeth.
The Defendant, who was a player in the opposing team, was convicted of recklessly causing grievous bodily harm. He was placed on a two year good behaviour bond but appears almost immediately to have left the jurisdiction and gone back to the United Kingdom.
Before he did so he engaged a solicitor to act for him in the proceedings which the Plaintiff commenced against him on 23 December 2011. In those proceedings the Plaintiff pleaded the assault in paragraphs 1 to 5 of the Statement of Claim and set out particulars of the damage that was suffered and the damages that were claimed in paragraphs 6 and 7.
The Defendant, through his solicitor, Grahame Howe, filed a defence on 19 March 2013 which said this:
(1) In answer to paragraph 6 of the Statement of Claim the Defendant does not admit the injuries and damages alleged by the Plaintiff.
(2) In relation to paragraph 8 [which I interpolate is an error for para 7] of the Statement of Claim the Defendant opposes the aggravated and exemplary damages sought by the Plaintiff.
The Plaintiff now moves by Motion seeking summary judgment under r 13.1 UCPR and that judgment be given for damages to be assessed.
It seems clear, without contradiction, that no defence has been identified in the document filed to the allegation of assault alleged in paragraphs 1 to 5 of the Statement of Claim. All the Defendant is seeking to do is to put the Plaintiff to proof of the damages which ought to be recovered for the assault which is impliedly admitted by the failure to contradict the pleading in the Statement of Claim (r 14.26).
In my opinion, r 13.1 is complied with. There are facts set out in the affidavit which prima facie demonstrate the assault by the Defendant on the Plaintiff and there is a statement of belief by the solicitor for the Plaintiff that the Defendant has no defence in the matter of liability in respect of the claim.
Accordingly, the Plaintiff is entitled to judgment with damages to be assessed.
The Plaintiff moves by a further Notice of Motion of 20 May 2013 seeking an order for substituted service pursuant to r 10.14 UCPR. The need for this arises in these circumstances.
As I mentioned earlier, Grahame Howe of Grahame W Howe & Co was the solicitor who appeared for the Defendant in the proceedings. On 13 May 2013 Mr Howe filed a Notice of Intention to File a Notice of Ceasing to Act. That document said that after seven days from the date of service of this notice Mr Howe would file in the registry of the Court and serve notice that he has ceased to act as the Defendant's solicitor. To this point no Notice of Ceasing to Act has been filed by Mr Howe. In that sense, he remains the Defendant's solicitor and documents can properly be served upon him.
However, there is relatively clear evidence that the Defendant has left the jurisdiction and gone to the United Kingdom and that Mr Howe is not actually acting for him in the proceedings or otherwise.
In the Notice of Intention to File a Notice of Ceasing to Act, paragraph 3 reads this way:
Until that notice is filed and served any document to be served on you in the proceedings will be taken to have been served on you if a copy of it is left at or emailed to [email protected] in accordance with UCPR 4.5.
What should have been contained in paragraph 3 is a street address for service of the Defendant. However, subsequent correspondence between the solicitor for the Plaintiff and Mr Howe have ascertained that Mr Howe is not aware of the Defendant's street address.
Attempts have been made to send emails to the email address referred to but it transpired that there was a typographical error and the reference to "com" should have been a reference to "co". There is also an email address at which Mr Graves, the solicitor for the Plaintiff, believes that the Defendant is able to be contacted by use of his LinkedIn account which appears to be a form of social media. There is evidence of the Defendant's profile on that account and there is evidence by the solicitor for the Plaintiff that that person is believed to be the Defendant.
The order sought in this Notice of Motion is that the Defendant be served by emails being sent to the Hotmail account and also by emails being sent to the LinkedIn account from the Plaintiff's LinkedIn account.
In circumstances where the Defendant has left the jurisdiction without apparently leaving any forwarding address with his solicitor, who at the time was still acting for him, it is clear that there is no other practicable way of serving the Defendant with further documents that may need to be served in the present proceedings.
I am satisfied that what is required in r 10.14 has been met and that it is appropriate to make the orders contained in that Notice of Motion.
Accordingly, the Plaintiff is entitled to order 1 as asked.
The Plaintiff seeks indemnity costs of the Notice of Motion for summary judgment on the basis of an email sent to the Defendant's solicitor on 1 May 2013. In that email the solicitors for the Plaintiff were prepared to allow the Defendant a further seven days to agree to consenting to judgment without liability.
In my opinion, there was no reasonable basis on which the Defendant could have resisted the judgment. There was simply no defence to the liability claim and in those circumstances the Plaintiff should have its costs of that motion on an indemnity basis.
In relation to the Notice of Motion for substituted service, the Defendant should pay the Plaintiff's costs on the ordinary basis and I make orders 1 and 2 in the draft order provided to me.
ORDERS:
1. Judgment for the Plaintiff with damages to be assessed.
2. Order that, upon filing of a Notice of Ceasing to Act by the Defendant's solicitor, service generally is taken to be effected when documents are forwarded to the Defendant via the following methods:
(a) An email sent by the Plaintiff's legal representatives to the email address [email protected]; or
(b) An email sent by Lawrence John Graves from his Linked-ln account as a Linked-ln "In-Mail" to the Linked-ln account of Richard Ashley West.
3.. A copy of this order be served on the Defendant in accordance with order 2 above and on the Defendant's solicitor within 7 days.
4. Defendant to pay the Plaintiff's costs of the Motion for summary judgment on an indemnity basis.
5. Defendant to pay Plaintiff's costs on the ordinary basis in relation to the Notice of Motion for substituted service.
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Decision last updated: 03 June 2013
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