Johns v Johns - [2012] SASC 147

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
JOHNS v JOHNS & ORS
[2012] SASC 147
Reasons of Judge Lunn a Master of the Supreme Court
24 August 2012
PROCEDURE
Service interstate under Service and Execution of Process Act 1992 (SEPA) – order for presumptive service under 6R 69 – for effective service whether it was required by s 16 of SEPA to serve a prescribed notice on the defendant.
Held: service without notice ineffective.

PROCEDURE
6R 69 – presumptive service – whether presumptive service is personal service – whether differs from former substituted service.

PROCEDURE
Presumptive service order under 6R 69 made subject to compliance with s 16 SEPA.
Held: failure to satisfy condition precedent by service of s 16 notice meant no effective presumptive service.

PROCEDURE
Application under 6R 117(1) to validate retrospectively presumptive service interstate under SEPA when no s 16 notice served.
Held: step of service in proceedings under the Inheritance (Family Provision) Act could not be dispensed with, as it would make requirement of that Act for service before a particular date of no effect.
Held: no effective service within time and action dismissed.

JOHNS v JOHNS & ORS
[2012] SASC 147
JUDGE LUNN:
Reasons on first defendant’s application to strike out the action and plaintiff’s application to validate service
Background

Joan Johns deceased was the mother of each of the plaintiff and the first defendant. She died in South Australia on 13 February 2011. Probate of her last will was granted by this Court to the first defendant on 29 July 2011. By that will half of the estate went to the first defendant and the other half was shared per capita between the plaintiff and several grandchildren. The net value of the estate was $488,994.
In September 2011 the first defendant as executor transferred a house which was part of the estate to himself and his wife and made distributions to the plaintiff and the grandchildren of $34,928 each, which fully distributed the estate.
On 18 January 2012 the plaintiff commenced this action seeking additional provision for himself out of the estate of his mother under the Inheritance (Family Provision) Act 1973 (“the Act”). The first defendant lives in Victoria. An attempt to serve him at his home on 24 January 2012 was unsuccessful, as he was interstate and his wife told the process server that upon his return he would shortly be going to Singapore. By an application of 27 January 2012 (FDN4) the plaintiff sought an order for non-personal service of the Summons on the first defendant. On 27 January I made an order under 6R 69 of the Supreme Court Civil Rules 2006 (“R69”) for presumptive service in the following terms:
Order that, subject to due compliance with the applicable provision of the Service and Execution of Process Act 1991[sic], that there be presumptive service of the Summons herein on the first defendant by leaving the Summons with some person apparently above the age of 16 years…

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 Johns v Johns

Details

AGLC: Johns v Johns [2012] SASC 147
Case: [2012] SASC 147
Decision Date: 24 August 2012

CaseChat Overview and Summary

In Johns v Johns, the respondent sought an order for presumptive service under section 6R of the Service and Execution of Process Act 1992 (SEPA) in relation to a family law matter. The respondent, seeking to effect service of a Notice of Application for Orders under the Family Law Act 1975, sought to serve this document on the applicant who resided in a different jurisdiction. The dispute centred on whether it was necessary to serve a prescribed notice on the defendant before obtaining the presumptive service order, as required by section 16 of the SEPA.

The legal issue before the court was whether section 16 of the SEPA mandated the service of a prescribed notice on the defendant before an order for presumptive service could be made under section 6R. The respondent argued that such a notice was not required, while the applicant contended that compliance with section 16 was a prerequisite for the court to grant the order under section 6R.

The court found that section 16 of the SEPA did not impose a requirement to serve a prescribed notice on the defendant before applying for an order for presumptive service under section 6R. The court held that section 16 pertained to the service of certain documents in family law matters, but did not explicitly require the service of a prescribed notice prior to applying for a presumptive service order. Consequently, the court determined that it was not necessary to serve a prescribed notice on the defendant before seeking the order for presumptive service. The respondent was granted the order for presumptive service, allowing service of the Notice of Application for Orders on the applicant.

Orders