Hornsby Shire Council v Trives
[2014] NSWLEC 41
•16 April 2014
Land and Environment Court
New South Wales
Medium Neutral Citation: Hornsby Shire Council v Trives [2014] NSWLEC 41 Hearing dates: 15 and 16 April 2014 Decision date: 16 April 2014 Jurisdiction: Class 4 Before: Pepper J Decision: Orders 1, 3 and 4 of the orders made on 15 April 2014 be vacated.
Catchwords: PROCEDURE: application for substituted service order - defendants overseas at time summons filed and application made - whether Court has jurisdiction to make order - whether Pt 11 of the Uniform Civil Procedure Rules 2005 applies to Court - whether Pt 11A of the Uniform Civil Procedure Rules 2005 applies - application dismissed. Legislation Cited: Land and Environment Court Act 1979, ss 16 to 21
Uniform Civil Procedure Rules 2005, r 10.14, Pt 11.1, 11.2, 11A, Sch 6Cases Cited: Alstom Ltd v Sirakas [2010] NSWSC 669
Filipowski v Frey [2005] NSWLEC 661
Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268
Laurie v Carroll (1958) 98 CLR 310
National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573Category: Interlocutory applications Parties: Hornsby Shire Council (Plaintiff)
Simon Trives (First Defendant)
Lachlan Bardo (Second Defendant)
Jing Yan (Third Defendant)Representation: 15 April 2014
16 April 2014
Mr J Johnson (Plaintiff)
Mr I Woodward (First Defendant)
Mr M Astill (Plaintiff)
Storey & Gough (Plaintiff)
Woodward Legal (First Defendant)
N/A (Second Defendant)
N/A (Third Defendant)
File Number(s): 40125 of 2014
EX TEMPORE Judgment
The Council Seeks an Order for Substituted Service Against the Second and Third Defendants
This was an application, by way of notice of motion filed 9 April 2014, to seek an order pursuant to r 10.14 of the Uniform Civil Procedure Rules 2005 ("UCPR") for substituted service of a summons and notice of motion filed 8 April 2014, on the second and third defendants, Mr Lachlan Bardo and Ms Jing Yan (whom I infer from the evidence is Mr Bardo's wife).
The circumstances giving rise to the application were contained in two affidavits of Ms Emily Catt sworn 7 and 9 April 2014, respectively. Ms Catt is the senior Environmental Protection Officer employed by the plaintiff, Hornsby Shire Council ("the council"). Additional background information was contained in the affidavit of Ms Belinda Gough, a partner of the solicitor for the council, who has carriage of the proceedings, sworn on 9 April 2014.
A CDC is Issued by Mr Trives for Detached Studios Capable of Being Used as Secondary Dwellings Owned by Mr Bardo and Ms Yan
Council's records revealed that there have only been two approvals issued by the council for a property at 14 Railway Parade, Hornsby, New South Wales, (Lot 3 in DP 414478, or otherwise known as "the property"): one on 3 March 1960, for the erection of an "FC Dwelling"; and the second on 3 October 1968, for the erection of "2 Bedrooms - FC Addition".
On 22 January 2014, the first defendant, Mr Simon Trives (the certifier), issued a complying development certificate ("CDC") in respect of the erection of two detached studios at the rear of the property that were, contrary to any development consent granted in respect of the property, capable of being used as two separate dwellings.
After an inspection of the property on 10 February 2014, the council contacted Mr Bardo regarding a letter it had sent him detailing its concerns about the issuing of the CDC. He requested that it be emailed to him at "[email protected]". He indicated that he was about to go overseas. He therefore requested that the council speak to his planner, Mr Serge Panayi.
This conversation took place and further correspondence passed between Mr Trives and the council, and the council and Mr Bardo and Ms Yan.
On 31 March 2014, Ms Catt attended the property for another inspection and observed that additional works had been carried out for the purposes of constructing the structures approved by the CDC.
On 2 April 2014, Ms Catt called Mr Bardo and they had the following telephone conversation:
EC: Mr Bardo, I'm calling in regards to Council's letter about the Complying Development Certificate for the detached studios. Have you received Council's letter dated 20 March 2014.
LB: No I haven't received the letter I'm overseas.
EC: When will you be back in Australia?
LB: My wife and I work overseas and we won't be back for approximately 3-4 Weeks.
EC: Do you have a postal address when you are in Australia? Do you live at 6 Wild Ash Way Thornleigh?
LB: No, I sold that property in about August last year and when we are in Australia which is only for 1-2 weeks at a time, we rent a serviced Apartment.
EC: So what is the best way to get correspondence to you?
LB: You can email it to me at [email protected], what is wrong?
EC: Thanks, I'll email you the letter straight away, Council is very concerned about your development and is strongly considering taking legal action regarding the complying development certificate.
LB: Oh, well I'll read your letter when I receive it.
Alarmed by the near completion of the development, on 8 April 2014, the council initiated proceedings by way of summons and filed an application in the Court for interim injunctive relief against Mr Bardo and Ms Yan to halt all further construction of the development.
The council have successfully served Mr Trives, through his solicitor, but have been unable to serve Mr Bardo and Ms Yan because they remain overseas.
On 8 April 2014, Ms Gough had the following telephone conversation with Mr Bardo:
BG: Is that Lachlan Bardo?
LB: Yes
BG: Mr Bardo, my name is Belinda Gough and I act for Hornsby Council. It's about your property at 14 Railway Parade, we sent you a letter by email last Friday.
LB: Yes I got that letter.
BG: Mr Bardo, Council is very concerned about the Complying Development Certificate issued by Mr Trives and I have filed the Summons seeking to set that aside. The Summons is in Court next Tuesday at 10 am and we are also going to seek orders that the building work being carried out on the site stops until the Court makes its decision.
LB: Yes, well is this urgent?
BG: Yes it is very urgent - the Court is going to hear our Motion next Tuesday.
LB: Well you sent me the letter last Friday and you haven't done anything so it can't be that urgent.
BG: We have filed proceedings.
LB: Well I have a solicitor, so...
BG: Would you please give me your solicitor's details and then I can contact them?
LB: I haven't signed the service agreement yet.
BG: Well would you ask them to call me and perhaps I can explain to them. Mr Bardo I understand you are overseas and we have to serve these documents, would you agree to accept service of them to your email address?
LB: No I will not agree to that.
It was in this context that the council sought the order for substituted service.
Rules Governing an Order for Substituted Service
Rule 10.14 of the UCPR provides as follows:
10.14 Substituted and informal service generally
(1) If a document that is required or permitted to be served on a person in connection with any proceedings:
(a) cannot practicably be served on the person, or
(b) cannot practicably be served on the person in the manner provided by law,
the court may, by order, direct 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 concerned.
(2) An order under this rule may direct that the document be taken to have been served on the person concerned on the happening of a specified event or on the expiry of a specified time.
(3) If steps have been taken, otherwise than under an order under this rule, for the purpose of bringing the document to the notice of the person concerned, the court may, by order, direct that the document be taken to have been served on that person on a date specified in the order.
(4) Service in accordance with this rule is taken to constitute personal service.
The Court's power to direct substituted service depends on the impracticability of effecting ordinary service in accordance with the UCPR. Typically, but not exclusively, such orders are made because of a justified apprehension that a party may, or is, evading service, or will leave the jurisdiction (Alstom Ltd v Sirakas [2010] NSWSC 669 at [43]-[46]); or may dispose of assets that are the subject of the proceedings.
However, substituted service is not a means of overcoming the territorial limits of a court's jurisdiction (Laurie v Carroll (1958) 98 CLR 310 and Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268 at [31] per Macfarlan JA).
Thus if a defendant leaves the jurisdiction before the commencement of the proceedings, there is generally no foundation for an order for substituted service (Laurie v Carroll).
An exception to this rule is provided for in Pt 11 of the UCPR. Part 11.2(1), in particular, states that an originating process may be served outside Australia in the circumstances referred to in Sch 6 of the UCPR. These circumstances relevantly for present purposes include: if the proceedings are founded on a cause of action arising in New South Wales ((a)); if the subject-matter of the proceedings, so far as concerns the person to be served, is property in New South Wales ((j)); and if the proceedings are for an injunction as to anything to be done in New South Wales or against the doing of any act in New South Wales ((n)). Any or all of these circumstances were applicable to the facts of the present application.
It was therefore on this basis that on 15 April 2014, the Court granted the substituted service order in the following terms:
1. leave is granted pursuant to r 10.14 of the Uniform Civil Procedure Rules 2005 to serve the summons, any application for interlocutory relief together with all evidence in support of any such application, on the second and third defendants by email at [email protected] by 4.00pm on 24 April 2014. The Summons is to bear the following notation:
"it is intended that the summons and accompanying documents are to be served on the second and third defendants outside Australia (r 11.3 of the Uniform Civil Procedure Rules 2005 (NSW))."
2. the return date of the summons is amended to 30 April 2014.
3. any notice of motion or amended notice of motion for interlocutory relief against the first, second or third defendant is to be filed and served by 24 April 2014.
4. all notices of motion for interlocutory relief referred to above are stood over for final hearing to 30 April 2014 at 9.30am before the Duty Judge.
5. the plaintiff is to pay the first defendant's costs of today.
6. liberty to restore on 48 hours notice.
It did so, however, in error, believing that Pt 11 applied to the Court. It does not and the Court, a superior court of record but one of limited statutory jurisdiction as defined in ss 16 to 21 of the Land and Environment Court Act 1979 (see National Parks and Wildlife Service v Stable Perisher Pty Ltd (1990) 20 NSWLR 573 at 574-575 and 577 per Gleeson CJ) (cf the District Court in Flo Rida), had no jurisdiction to make the order it did (there being no other source of jurisdiction available to it to do so).
Parts 11.1 and 11.2 of the UCPR provide as follows:
11.1 Application of Part
(1) This Part applies to proceedings in the Supreme Court.
(2) For the purposes of this Part, a reference to Australia includes a reference to the external Territories.
11.2 Cases for service of originating process
(1) Originating process may be served outside Australia in the circumstances referred to in Schedule 6.
(2) This rule extends to originating process to be served outside Australia in accordance with the Hague Convention.
There is no ambiguity whatsoever as to the exclusive application of Pt 11 to the Supreme Court. Just as Pt 11 has no application to the District Court (Flo Rida), it can have no application to this Court. Thus none of the exceptions contained in Sch 6 to the UCPR are available to the Court.
In the present case, the evidence clearly demonstrates that Mr Bardo and Ms Yan not only may not ordinarily reside in Australia but were both overseas when the proceedings were commenced. Moreover, there is no real suggestion that either defendant left Australia for the purpose of evading service. In these circumstances, the Court's territorial want of jurisdiction cannot be overcome by an order for substituted service.
The present facts may be contrasted with those in Filipowski v Frey [2005] NSWLEC 661, where the defendant was within the jurisdiction when proceedings were commenced because he had voluntarily submitted to it (at [22]-[23]).
Accordingly, having discovered the error, the Court relisted the matter to give the council the opportunity to be heard. The council agreed with the Court's analysis concerning Pt 11 of the UCPR. The council then sought to argue that Pt 11A of the UCPR (dealing with service under the Hague Convention) could be of assistance, but later abandoned this submission in the absence of any evidence (as opposed to an assertion from the bar table) as to where Mr Bardo and Ms Yan were presently located (they were asserted to be in China), and whether the Hague Convention applied.
Orders
It follows, therefore, that orders 1, 3 and 4 of the orders made on 15 April 2014 must be vacated, and I so order.
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Decision last updated: 17 April 2014
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