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Hadgkiss v Aldin

Hadgkiss v Aldin

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Case Copied 30 August 2006 4 min read

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FEDERAL COURT OF AUSTRALIA
Hadgkiss v Aldin [2006] FCA 1164
PROCEDURE – application for substituted service
Federal Court Rules O 7 r 9
Ginnane v Diners Club Ltd (1993) 42 FCR 90
Re Mendonca; Ex parte Commissioner of Taxation (1969) 15 FLR 256
Rice Growers Co-Operative Ltd v ABC Container Line NV (1996) 138 ALR 480
NIGEL HADGKISS v GORDON WILLIAM ALDIN AND OTHERS
WAD 185 of 2006
NICHOLSON J
30 AUGUST 2006
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 185 OF 2006

BETWEEN:

NIGEL HADGKISS
Applicant

AND:

GORDON WILLIAM ALDIN
First Respondent

AND OTHERS
Second – One Hundred and Seventh Respondents

JUDGE:

NICHOLSON J

DATE:

30 AUGUST 2006

PLACE:

PERTH

REASONS FOR JUDGMENT

The applicant brings a notice of motion for orders for substituted service. The orders are sought in reliance on O 7 r 9 of the Federal Court Rules (‘FCR’). That provides that where for any reason it is ‘impractical’ to serve a document in the manner set out in the Rules, the Court may by motion made ex parte order that, instead of service, such steps be taken as are specified in the Order for the purpose of bringing the document to the notice of the person to be served.
The orders are sought in respect of the service of the application and a statement of claim. Order 7 r 1 requires that originating process shall served personally on each respondent, save where a respondent has entered an appearance, filed a defence or appeared before the Court. Personal service is effected pursuant to FCR O 7 r 2 by leaving a copy of the document with the individual.
The substituted service must be based on a reasonable probability that it will inform the person served as a result of the form of service identified: cf Ginnane v Diners Club Ltd (1993) 42 FCR 90 at 92 citing Re Mendonca; Ex parte Commissioner of Taxation (1969) 15 FLR 256 at 261 per Gibbs J. In order to establish impracticality some attempt, at least, should be made to effect service in accordance with the Rules, or evidence should be led that it is so obviously futile as not to warrant an attempt at service: Rice Growers Co-Operative Ltd v ABC Container Line NV (1996) 138 ALR 480 at 482 per Tamberlin J.
The applicant has provided the Court with a document entitled ‘Summary of affidavit evidence in support of application for substituted service’. That is supported by the affidavits relied upon by the applicant from which the summary has been prepared. I have examined those materials and have reached the view that in accordance with the abovementioned principles it is appropriate for orders to issue in accordance with the motion save in the following respects now identified and subject to consideration of any response to that identification received from the ex parte applicant.
The 3^rd Respondent – Bruce James Allsopp
The evidence in respect of Mr Allsopp shows that his brother advised…

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.

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Details

Case: [2006] FCA 1164
Decision Date: 30 AUGUST 2006

CaseChat Overview and Summary

Nigel Hadgkiss brought an application for substituted service against Gordon William Aldin and others in the Federal Court of Australia, seeking orders for service of the application and statement of claim in accordance with O 7 r 9 of the Federal Court Rules. The application was based on the impracticality of serving the respondents personally. The court had to determine whether the applicant had established that it was impractical to serve the respondents personally, and if the proposed substituted service methods were reasonable.

The court examined the affidavits and summary of evidence provided by the applicant and found that the conditions for substituted service were met for most of the respondents. However, the court identified issues with the service orders for certain respondents, such as the lack of evidence of attempts to serve Bruce James Allsopp after his return to Perth, and discrepancies in the addresses for James Patrick Doyle, Anthony Peter Nichols, and Mark Phillip Galli. The court also found insufficient evidence to support service on Dean Michael McBride. The court decided to hold the motion open to allow the applicant to provide further evidence or submissions on behalf of the affected respondents.

The court ordered substituted service for most of the respondents but withheld orders for Bruce James Allsopp, James Patrick Doyle, Anthony Peter Nichols, Mark Phillip Galli, and Dean Michael McBride pending further evidence or submissions from the applicant. The court certified that the preceding paragraphs were a true copy of the reasons for judgment.

Orders