Hassan v Noa
[2020] VSC 308
•29 May 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2017 00417
| ZAHRA HASSAN BY HER ADMINISTRATOR STATE TRUSTEES | Plaintiff |
| v | |
| DAVID NOA | Defendant |
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JUDICIAL OFFICER: | Judicial Registrar Clayton |
WHERE HELD: | Melbourne |
DATE OF HEARING: | Not applicable |
DATE OF RULING: | 29 May 2020 |
CASE MAY BE CITED AS: | Hassan v Noa |
MEDIUM NEUTRAL CITATION: | [2020] VSC 308 |
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PRACTICE AND PROCEDURE – Application for substituted service – Personal injury – Motor vehicle accident – Defendant previously located but can no longer be reached by plaintiff – Supreme Court (General Civil Procedure) Rules 2015 - r 6.10(1) – Role of Transport Accident Commission as insurer - Whether service on insurer would bring the documents to the attention of the defendant – Chappell v Coyle (1985) 2 NSWLR 73 and Porter v Freudenberg [1915] 1 KB. 857 applied – Where plaintiff not deprived of remedy because defendant cannot be found – availability of s 94(7) of the Transport Accident Act1986 (Vic) cf. Centralian Industries Pty Ltd v Johnston [1997] 1 VR 118 and O’Neil v Acott (1988) 93 FLR 432.
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JUDICIAL REGISTRAR:
This is an application for substituted service by the plaintiff. She seeks an order that she have leave to effect service on the defendant by sending the following documents by post to the Transport Accident Commission, insurer of the defendant:
(a) Third Further Amended Generally Endorsed Writ filed on 31 July 2019;
(b) The Third Further Amended Statement of Claim; and
(c) Form 1 Notice to the Defendant.
The plaintiff claims damages in relation to a transport accident that occurred on 13 November 2005. She was a passenger in a vehicle driven by the defendant David Noa (‘the driver’).
The limitation period in which she was required to make any claim expired on or about 13 November 2011.
On 6 February 2017, the plaintiff filed a Generally Endorsed Writ naming the driver as the defendant.
The case has a long interlocutory history in this Court, which I detail below.
Interlocutory history of the proceeding
The plaintiff made an application for an extension of time in which to bring her claim (‘the extension application’) on 10 January 2018. That summons has been subsequently amended to reflect the various changes in the parties to the proceeding detailed below. The application has been adjourned on several occasions, and has yet to be heard.
On 14 March 2018, the plaintiff made an application for substituted service (the ‘first substituted service application’). The plaintiff had not been able to locate and serve the driver. Prior to that application being heard, she sought to appoint a litigation guardian, her son, Hashim Bashir Hassan. Orders appointing the litigation guardian were made on 22 March 2018.
On 23 March 2018, orders were made to join the Transport Accident Commission (‘TAC’) as a defendant to the proceeding. The orders do not record what happened to the first substituted service application. On 28 March 2018, the plaintiff filed an Further Amended Writ and Further Amended Statement of Claim naming the TAC as the second defendant, and amending the name of the plaintiff to reflect the appointment her litigation guardian.
The parties subsequently obtained orders by consent on 4 September 2018 removing the litigation guardian, amending the plaintiff’s pleading to name ‘Zahra Hassan by her administrator State Trustees’ as plaintiff and removing the first defendant, leaving the TAC as the sole defendant. By these orders, the first substituted service application effectively fell away, although it was never formally withdrawn or dismissed. It should be noted here that the consent minute was submitted and signed by the plaintiff’s solicitors and the TAC only, and not the first defendant. However, I do not consider that anything turns on this.
On 6 September 2018, the plaintiff filed a Second Further Amended Writ and a Second Further Amended Statement of Claim naming the TAC as the sole defendant pursuant to s 94(7) of the Transport Accident Act 1986 (Vic) (‘ the TAA’).
On that same date, she amended the extension application summons to reflect the new defendant and the change from ‘Zahra Hassan by her litigation guardian’, to ‘Zahra Hassan by her administrator State Trustees’. The extension application was made returnable on 8 February 2019.
On 22 November 2018, the return date for the extension application was vacated by consent at a request of the plaintiff due to her personal circumstances. The extension application was subsequently listed for hearing on 31 May 2019.
In preparation for the hearing of the extension application, the defendant’s solicitor, Ms Simone Leith, filed an affidavit dated 21 May 2019. In that affidavit Ms Leith deposed to the prejudice that she considered her client would suffer as a result of, amongst other things, the fact that the driver was unable to be located.
On 28 May 2019, the plaintiff’s solicitors informed the Court that she had engaged investigators who had located the driver living in New Zealand. The parties requested that the hearing date for the extension application be adjourned.
On 29 May 2019, the extension application was adjourned to a date to be fixed and a directions hearing was listed for 5 July 2019.
On 5 July 2019, at that directions hearing the plaintiff informed the Court that the driver had now been located. She sought orders to reinstate the driver as the defendant and remove the TAC as a defendant. Those orders were made and the extension application was listed for hearing on 14 October 2019.
The plaintiff filed a Third Further Amended Writ and Third Further Amended Statement of Claim on 31 July 2019, removing the TAC as the defendant and adding the driver as the sole defendant.
On 24 September 2019, orders were made by consent to extend the date for further affidavit material and submissions in the extension of time application. It should be noted here that the consent minute was submitted and signed by the plaintiff’s solicitors and the TAC. At this point the TAC was no longer a defendant. However I do not consider that anything turns on this.
Due to judicial availability the hearing of the extension application was adjourned to 2 December 2019.
On 27 November 2019, the plaintiff filed a second summons for substituted service (‘the second substituted service application’) which was made returnable on 29 November 2019. On 29 November 2019, Mr Ingram for the plaintiff and Mr Blanden for the TAC, sought an adjournment of the substituted service application to allow time for the plaintiff to consider whether she wished to pursue that application or to make an application to seek to substitute the TAC as defendant pursuant to s 94(7) of the TAA. I adjourned the hearing of the substituted service application to 14 February 2020. Given the proximity of this hearing to the return date for extension application, I vacated the hearing of the extension application.
On 11 February 2020, the plaintiff informed the Court that she intended to pursue her substituted service application on 14 February 2020. Mr Ingram attended for the plaintiff and Ms Myers for the TAC, as an interested party. Due to other commitments of the plaintiff’s counsel on that date, the estimate of the time that the application would take, and the demands of other business before the Court, the hearing was further adjourned to 2 April 2020.
In the meantime, the COVID-19 pandemic intervened, effectively resulting in most in-person hearings being suspended and proceeding remotely, or on the papers. Parties consented to this substituted service application being dealt with on the papers.
Background to the plaintiff’s claim and to this application
The plaintiff alleges that the collision on 13 November 2005 was caused by the negligence of the driver.
The driver’s known address at the time of the accident was an address in Cranbourne West, in Victoria. On 20 January 2018, the plaintiff attempted to serve the driver at this address. In an affidavit of attempted service dated 2 February 2018, process server Betty Dwyer swore that she had been unable to serve the driver at this address. She had spoken with a person at the address who identified himself as Michael Noa who said that David Noa had moved out ‘ages ago’.[1]
[1]Affidavit of Attempted Service sworn by Betty Dwyer on 29 January 2018 and filed on behalf of the plaintiff on 2 Feb 2018.
The Cranbourne West address was the address given by the driver in his personal TAC claim.[2]
[2]TAC Claim Form signed by David Noa, exhibited as Exhibit “SL10” to the Affidavit of Simone Leith sworn on 21 May 2019 and filed on behalf of the defendant (TAC).
After Ms Leith filed her first affidavit dated 21 May 2019 in opposition to the plaintiff’s extension application, in which Ms Leith set out the prejudice that her client would sustain if the extension application were granted, the plaintiff’s solicitors renewed their efforts to locate the driver.
A report by investigators ‘Verifact’ dated 24 March 2016 suggested that the driver was living in New Zealand.[3]
[3]Verifact Report, exhibited as Exhibit “SL15” to Affidavit of Simone Leith sworn on 21 May 2019.
Armed with this information, the plaintiff’s solicitors engaged Probe Investigations to try to find the driver.[4]
[4]Affidavit of Betty Alexopolous sworn on 27 November 2019 and filed on behalf of the plaintiff, [4].
Probe provided the plaintiff’s solicitors with an Interim Report dated 27 May 2019.[5] According to the report:
[5]Probe Operations Pty Ltd – Interim Report, exhibited as Exhibit “BA1” Affidavit of Betty Alexopolous sworn on 27 November 2019
(a) there was a listing for David Noa on Facebook with a photograph that had been uploaded on 20 February 2018;
(b) he was ‘Facebook friends’ with a Michael Noa in Melbourne;
(c) company searches in New Zealand failed to record any listings against his name;
(d) he was not listed on the website Linked-In’s New Zealand site;
(e) New Zealand property searches showed that he was joint owner of a block of leasehold land that was not developed;
(f) no telephone number was listed for him in New Zealand; and
(g) a New Zealand electoral roll search found a David Anthony Noa at an address in Puia Street, Ngawha Springs, Kaikohe.
The report concludes that ‘extensive searches were conducted and our agent confirmed that the subject and family reside at the address in Puia Street’.[6] There is no further detail provided about what those extensive searches were and how or why this conclusion was drawn. There is no information before the Court as to the date of the electoral roll registration.
[6]Probe Operations Pty Ltd – Interim Report, exhibited as Exhibit “BA1” to the Affidavit of Betty Alexopolous sworn on 27 November 2019, 1.
After receiving this report, the plaintiff’s solicitors notified the TAC and the Court by email dated 28 May 2019 that the driver had been located. The plaintiff subsequently sought orders reinstating the driver as the defendant, and removing the TAC as a defendant. As outlined above, those orders were made on 5 July 2019 and the amended documents were filed on 31 July 2019.
Ms Leith of the TAC spoke with Mr Noa by telephone on 15 August 2019 and swore a further affidavit dated 9 September 2019 attesting to that conversation.[7] There is nothing in that affidavit to indicate whether Ms Leith informed Mr Noa that he was named as the defendant in the proceeding, or that the proceeding was in existence.
[7]Affidavit of Simone Leith sworn 9 September 2019. *see proposed addition in Comments*
The TAC provided the plaintiff with an alternative address for the driver on State Highway, Kaikohe.[8] There is a dearth of information before me as to how this alternative address was provided. In any event the plaintiff made a number of attempts to serve the driver at both the State Highway and Puia Street address, to no avail. Those attempts are set out in the affidavits of Ms Alexopoulos dated 27 November 2019 and 11 February 2020. Ms Leith also attempted to make further contact with the driver without success. Those attempts are set out in her affidavits of 9 September 2019, 19 November 2019 and 28 November 2019.[9]
[8]Letter from TAC to the Slater & Gordon dated Slater & Gordon dated 30 July 2019, exhibited as Exhibit “BA2”to the Affidavit of Betty Alexopolous sworn on 27 November 2019.
[9]The Affidavits of Simone Leith sworn on 19 November 2019 and 28 November 2019 were provided to the Court but have not been filed in the proceeding as the defendant is not currently a party to the proceeding.
According to the process servers, the Puia Street house did not appear to be occupied, but there were signs that the State Highway address was inhabited.[10] The process servers were able to see photographs of a person who they considered was the driver through the window in the State Highway house. There was a dog present at the address and there were small changes to the property between visits.
[10]Affidavit of attempted service, sworn by Doug Bourke on 21 November 2019, exhibited as Exhibit “BA5” to the Affidavit of Betty Alexopolous sworn on 27 November 2019; and Affidavit of attempted service, sworn by William John Dawson on 7 February 2020, exhibited as Exhibit “BA7” to the Affidavit of Betty Alexopolous sworn on 11 February 2020, and filed on that date.
Application for Substituted Service
The plaintiff’s application is made pursuant to Rule 6.10(1) of the Supreme Court (General Civil Procedure) Rules 2015 which provides:
Where for any reason it is impracticable to serve a document in the manner required by these rules, the Court may order that, instead of service, such steps be taken as the Court specifies for the purpose of bringing the document to the notice of the person to be served.
The step that the plaintiff urges the Court to specify for that purpose is to order that the plaintiff serve the TAC.
The plaintiff submits that it should be inferred that, during Ms Leith’s phone conversation with the driver on 15 August 2019, she informed him that the purpose of her call was to discuss proceedings brought against him by the plaintiff.
The plaintiff submits that the driver will be a ‘necessary witness’ in the extension application and at any trial of the proceeding and that, if he does not appear, a ‘strong adverse inference will be sought by the plaintiff’. The plaintiff points out that the TAC is a statutory insurer and a model litigant. She submits that the TAC ‘previously erroneously asserted the driver’s whereabouts were unknown’.[11]
[11]Submissions of the Plaintiff in support of the application, filed on 30 March 2020, 4.
The fact that the driver was subsequently located, albeit briefly, does not necessarily render a previous assertion that his whereabouts were unknown false. I note that s 94(8) of the TAA provides that ‘an owner or driver shall be deemed to be unable to be found if the owner or driver cannot be found at the last-known place of residence of the owner or driver’. I do not consider the TAC’s assertion that the driver’s whereabouts were unknown to be false.
Nevertheless I am not persuaded that anything turns on this submission. Both parties are now in agreement that the driver cannot currently be located in order to effect service. The plaintiff urges me to conclude that he is resident at the State Highway address ‘behind locked gates and guarded by dogs’ and that service upon the TAC would fulfil the requirements of Rule 6.10(1).
However, the evidence is insufficient to persuade me that the driver lives at either the State Highway or the Puia Street address. It is possible, perhaps even likely, that the driver had or has some connection with one or both of the addresses in Kaikohe given the evidence of the process servers set out in the affidavits of Ms Alexopoulos. However no one was home on any of the various occasions when process servers attended the properties. None of the neighbours were able to help. The driver may have moved since signing the electoral roll. He may have moved since speaking with M Leith in August last year. I have no way of knowing.
The plaintiff further submits that the TAC does not have standing in this proceeding to object to an order for substituted service and relies on the case of Bradvica v Radulovic.[12] In that case Gillard J found that the statutory predecessor to the TAC did not have standing to seek to set aside an order that had been made for substituted service. That is not the case here. Rather it is for the plaintiff to positively persuade the Court that such an order should be made. Whether the TAC has standing to oppose an order does not impact on the burden the plaintiff bears to establish that such an order should be made.
[12][1975] VR 434.
The plaintiff submits that the authorities warrant the making of the order sought. I turn now to those authorities.
Authorities
In Porter v Freudenberg[13] the Court of Appeal considered the question of substituted service in England of a writ upon the English agent of the defendant, who was an alien enemy resident abroad. The court said at 888:
In order that substituted service may be permitted, it must be clearly shown that the plaintiff is in fact unable to effect personal service and that the writ is likely to reach the defendant or come to his knowledge if the method of substituted service which is asked for the plaintiff is adopted.[14]
[13][1915] 1 KB 857.
[14]Porter v Freudenberg [1915] 1 KB. 857, 888.
In the same judgment the court said that before granting an order for substituted service the judge should:
Satisfy himself…the [substituted service] will in all reasonable probability, if not certainty, be effective to bring knowledge of the writ to the defendant.[15]
[15]Ibid, 889.
In Foxe v Brown[16] the High Court considered the question of substituted service under High Court Rule 9.2(2) which enabled substituted service ‘where the plaintiff is, from any cause, unable to effect prompt personal service’.[17] This rule does not include the additional element present in the NSW or Victorian rules, namely that the steps to be taken are ‘for the purpose of bringing the document to the notice of the person to be served’.[18] Mason J accepted the correctness of the principle stated in Porter v Freudenberg but considered it appropriate to permit exceptions where the insurer is the ‘real defendant’ and it was then immaterial whether notice of the claim would be passed on to the named defendant.[19]
[16](1984) 58 ALR 542.
[17]High Court Rules 2004 (Cth), r 9.2(2).
[18]See Uniform Civil Procedure Rules 2005 (NSW), Rule 10.14.
[19]Foxe v Brown (1984) 58 ALR 542, 546 per Mason J.
In Chappell v Coyle[20] which also involved a motor vehicle accident, Yeldham J overturned an order for substituted service, holding that the Court may only make an order for substituted service when it is demonstrated that it is likely that the document will come to the notice of the person to be served. The Court held that:
[A]lthough an order that a statement of claim may be served upon the authorised insurer in the type of case with which we are dealing could be said, in most circumstances, to accord with the justice of the situation, that fact cannot serve to bring within the relevant rule that which is outside it. The court is only empowered to order steps to be taken by way of substituted service for the purpose of bringing the statement of claim to the notice of the named defendant.[21]
[20](1985) 2 NSWLR 73.
[21]Chappell v Coyle (1985) 2 NSWLR 73, 86 per Yeldham J.
The Full Court of the Supreme Court of the Northern Territory also considered this problem in O’Neil v Acott.[22] That was another motor vehicle accident case in which the defendant could not be located. A master ordered that service be effected upon the Territory Insurance Office, insurer of the motor vehicle, which had the right to conduct such proceedings and was described by the trial judge as ‘the real applicant’. The applicable rule was similar to the Victorian rule. Ashe CJ, referring to Yeldham J in Chappell v Coyle, said:
I acknowledge the strict logic of his Honour’s reasoning. But I would not, with respect, think it necessarily within the spirit and intendment of the rules to deprive a plaintiff of relief in the exceptional case, where all that stands between him and a legislative scheme expressly devised to give him a remedy if the opposite party cannot be found, is the very fact that the opposite party cannot be found.[23]
[22](1988) 93 FLR 432.
[23]O’Neil v Acott (1988) 93 FLR 432, 439 per Asche CJ.
This line of reasoning was followed by Southwell J in the case of Centralian Industries Pty Ltd v Johnston[24] (‘Centralian Industries’) on which the plaintiff relies. In that case a company (Forwood) that had been in liquidation and was deregistered, was reinstated for the purpose of being sued by the plaintiff, who was dying from mesothelioma. An order for substituted service upon the insurer, or possible insurer, of the reinstated company (Heath) had been made by the Master. Heath sought unsuccessfully to overturn the substituted service order. Southwell J found that it was appropriate to look at the realities of the situation, which included the fact that the plaintiff was terminally ill, and the Court must consider who was more likely to be able to establish the identity and whereabouts of the persons best fitted to stand in the shoes of the company. In that case the Court was satisfied that the insurer was in a better position than the plaintiff’s solicitors to establish the relevant identities and to act on behalf of the company. Southwell J said at 121:
As it seems to me, the underlying reason for the caution with which the courts have approached the problem is the seeming injustice of a judgment being obtained against a person who may be disadvantaged by that judgment and who may wish to defend the proceedings, but who is in ignorance of them. The rule makers did not, as I think, have in mind circumstances such as are here present. So far as an insurer is concerned, it may need the instructions of the defendant (and perhaps, his presence) to be enabled to defend the case. Where the defendant is a company, it is to the management, staff or directors that the insurer will first look and from whom instructions will be sought. In the present case, although difficulties have been encountered in tracing records and identities, I am not persuaded that there is no reasonable possibility that Heath [the insurer] will discover the identity and whereabouts of the management, staff or directors…..it follows that the seeming injustice to which I have referred has not here been shown to exist.[25]
[24][1997] 1 VR 118.
[25]Centralian Industries Pty Ltd v Johnston [1997] 1 VR 118, 121 per Southwell J.
The plaintiff submits that the present situation is directly analogous to that in Centralian Industries.
In applying the principles derived from the cases to the present application, it seems to me that there are two factors that distinguish this case from Centralian Industries and O’Neil v Acott. The first is that in Centralian Industries, his Honour considered that the insurer was better placed to be able to find the appropriate persons to act for the company – the managers, directors or former staff – than the plaintiff, and was not persuaded that there was no prospect of such persons being located. That is different from the present case where it is not submitted that the TAC is in any better position than the plaintiff to locate and serve the driver. On the evidence before me I cannot be satisfied that serving the TAC will bring the documents to the attention of the driver. I can draw an inference that the driver was told of the proceeding by Ms Leith during her conversation with him on 15 August 2019, but that is insufficient to satisfy the requirements of the rule.
The second is that in Centralian Industries his Honour accepted the proposition that, even if the documents would not be brought to the notice of Forwood, the plaintiff ought not be denied a remedy that would otherwise be available, because the opposite party cannot be found, in circumstances where the insurer would, in reality, be the party defending the proceeding and bearing the burden of any judgment. He observed:
In a case such as the present, where a defunct company is reregistered merely for the purpose of being sued, the acceptance of the submission might produce the result that service could never be affected upon anyone - for example where the former directors cannot be found. So it might follow that a former employee of a company having a good cause of action against it, and the company at the relevant time being indemnified by an insurer, would succeed if the company prospered and continued in existence, but would fail if it had been dissolved.[26]
[26]Centralian Industries Pty Ltd v Johnston [1997] 1 VR 118, 120 per Southwell J.
His Honour found that, even if Chappell v Coyle was regarded as indistinguishable:
I would nevertheless hold that since the justice of the case so clearly lies in favour of enabling the plaintiff to pursue his claim against Forwood, I should adopt the reasoning of the Full Court in O’Neil v Acott. [27]
[27]Ibid, 124.
The reasoning in O’Neil v Acott was that it was not within the spirit and intendment of the rules to deprive a plaintiff of a remedy that the legislative scheme was expressly devised to provide.
In the present case, the plaintiff is not deprived of such a remedy, as the TAA provides, at s 94(7):
If liability has been incurred to a person by an owner or driver in respect of which the Commission is liable under this section to indemnify the owner or driver and the owner or driver—
(a) cannot be identified; or
(b)is dead or cannot be found or, in the case of a corporation, has been wound up—
the person may recover against the Commission a sum equivalent to the amount for which the person could have obtained a judgment against the owner or driver or equivalent to the amount of the liability of the Commission under the indemnity, whichever is the lesser.
These provisions are intended to ensure that a remedy is available to the plaintiff, even where a driver cannot be found, as is the case here. Given that the plaintiff is not shut out from a remedy, the discretionary element that was operational in both Centralian Industries and O’Neil v Acott is not present. Therefore, the principle expounded in Porter v Freudenberg and applied in Chappell v Coyle remains relevant, namely whether the Court is satisfied that the steps sought to be ordered would bring the document to the notice of the party to be served.
I am not so satisfied, and therefore refuse the application.
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