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 at 5 Ryder Court, Doncaster East, Victoria, and at that time giving with the Summons a letter addressed to the first defendant explaining the effect of this order.
On Monday 30 January 2012 the Summons was left with the first defendant’s wife at the address referred to in the order. No notice in the terms of Form 1 (“a Form 1”) prescribed by Regulation 4(1)(a) of the Regulations under the Service and Execution of Process Act 1992 (“SEPA”) was served with the Summons, or at all.
On 9 February 2012 solicitors filed a Notice of Address for Service for the first defendant. On 1 May 2012 those solicitors filed an application (FDN10) seeking that the action be dismissed.[1]
[1] Other relief sought in FDN10 was not pressed.
On 19 July 2012 the plaintiff issued an application (FDN14) for a number of orders seeking to validate the service on the first defendant on 30 January 2012.
It was considered that some of the submissions to be made on FDN10 might raise a constitutional issue under s 109 of the Commonwealth Constitution about a conflict between R69 and SEPA. A s 78B notice under the Judiciary Act 1903 was served on the Commonwealth and State Attorney-Generals. However, the point was not pressed and I have been able to resolve the matter without reference to it.
Time limit under the Act
Sub-sections (1) and (6) of s 8 of the Act provide:
(1)Subject to this section, an application shall not be heard by the Court at the instance of a person claiming the benefit of this Act unless the application is made within six months from the date of the grant in this State of probate of the will, or letters of administration of the estate, of the deceased person.
…

(6)An application for the benefit of this Act shall be deemed to be made on the day when the summons by which it is instituted is served on the administrator of the estate.
It was undisputed that the six month period in which the Summons had to be served on the first defendant expired on Monday 30 January 2012.[2] There was no dispute that if I find that the Summons was not effectively served on the first defendant on 30 January the action is futile and therefore must be dismissed.
[2] The period was extended by one day under s 27(1) of the Acts Interpretation Act 1915, as the last day of the six months fell on a Sunday.
Service under SEPA
By s 8(4) of SEPA the Summons from this Court could only be effectively served on the defendant in Victoria pursuant to the provisions of SEPA. However, this is qualified, to some extent, by s 8(1) of SEPA which provides:
(1)This Act does not affect a decision of a court or tribunal to allow substituted service of a process.
Section 16 of SEPA (“s 16”) provides:
Service is effective only if copies of such notices as are prescribed are attached to the process, or the copy of the process, served.
A Form 1 is the prescribed notice for s 16. No such notice was served on the first defendant. The primary issue before me is whether the effect of the failure to serve such a notice means that there has been no effective service of the Summons on the first defendant on 30 January 2012.
If there had been personal service of the Summons on the first defendant in Victoria on 30 March 2012, but no Form 1 had then been served on him, such service would have been invalid and ineffective.[3] The parties cannot mutually waive compliance with s 16.[4]
[3] Energy Conservation Systems Pty Ltd v DownerEDI Engineering Electrical Pty Ltd (2008) 221 FLR 393.
[4] Elan Copra Trading Pty Ltd v J K International Pty Ltd (2005) 56 ACSR 416.
Application of s 16 of SEPA to substituted service
I accept the submission of counsel for the defendant that s 16 does require service of a Form 1 when substituted service of a summons of this Court is effected in another place in Australia where that summons can only be effectively served pursuant to SEPA. There is no known authority on the point. Section 8(1) of SEPA, as quoted above, does not make service under a substituted service order effective service for the purposes of the SEPA, but only allows for the process of service to be varied by a decision for substituted service. There is no necessary inconsistency between s 8(1) and s 16 of SEPA. It is feasible to incorporate the service of a Form 1 into whatever mode of service is directed as substituted service.[5] The purpose of s 16 of and Form 1 is to benefit and assist defendants served pursuant to SEPA. If s 16 was held not to apply where there is substituted service, it would create the anomaly that a defendant served by substituted service pursuant to s 8(1) would not get the benefit of s 16, but a defendant who was served by conventional means would get its benefit.
[5] There would have been no difficulty in the circumstances of this matter in delivering a Form 1 with the Summons to the first defendant’s wife. Potentially there could be difficulty if the mode of substituted service was by advertisement or the like, but then s 16 would not apparently apply as no copy of the Summons would be served.
Subject to the plaintiff’s application to validate the service under 6R 117(1), which is dealt with below, the application of s 16 to substituted service is a sufficient basis to find there was no effective service of the first defendant on 30 January and therefore that the action must be dismissed. However, I will also deal with a number of other issues which confirm this result.
Is presumptive service substituted service?
Rule 69 provides:
69—Presumptive service
(1)     The Court may, on application by a party, make an order for presumptive service of a document.
(2)     An order for presumptive service provides that, if the conditions of the order are complied with, service of the document is to be presumed.
Examples—
1An order for presumptive service might provide for service on a person who might reasonably be expected to bring the document to the attention of the party.
2An order for presumptive service might provide for the publication notice of the document in a particular newspaper or newspapers.
3In a case where the plaintiff seeks an order for possession of land and it is not clear who (if anyone) is in occupation of the land, the Court might order that notice of the action be affixed in a prominent position on the land.
(3)     It is not necessary for the applicant to establish that the proposed alternative to personal or non-personal service will bring the document to the notice of the person to be served.
The term “presumptive service” is peculiar to the South Australian Supreme Court Civil Rules 2006. I am not aware of it appearing in any other comparable rules or statute. The term used in similar rules elsewhere, and in 87R 14, which was the predecessor to R69, was “substituted service”. As far as I am aware, the concept of “substituted service” has never been authoritatively defined. It was the common expression used where the Court allowed a different mode of service to be employed from that which was required by the Rules and in circumstances where the mode required by the Rules could not be successfully utilised. It was traditionally spoken of as an alternative mode of service in lieu of that which was required by the Rules.
In my view, the use in R69 of the term “presumptive” in lieu of “substituted” is significant. There is no judicial exposition of the meaning of “presumptive” in a comparable context. The Macquarie Dictionary[6] contains the following definitions:
Presume: to take for granted, assume or suppose … to assume as true in the absence of proof to the contrary …
Presumption: the act of presuming, assumption of something as true …
Presumptive: affording ground for presumption based on a presumption …
There are legal concepts of the presumption of death, presumption of innocence, presumption of a lost grant, presumption of paternity, presumption of regularity, presumption of sanity, presumption of advancement and others. In each of them something is acted upon as if it had happened, even though there is no proof to the requisite degree that it has occurred. Similarly, “presumptive service” is service which is assumed to have occurred, even though it has not been proved to have occurred. It is not an alternative lesser mode of service, but service which is presumed to have occurred in the particular circumstances of the case. If so, presumptive service where personal service is otherwise required is to be treated as personal service.
[6] Revised 3^rd Ed, p 1505.
Substituted service, as traditionally understood, is of necessity non-personal service because the requirements for personal service have not been satisfied.[7] However, that presumptive service can be personal service is consistent with the reference to “personal or non-personal service” in sub-r 69(3). If only traditional substituted service was contemplated by R69, the words “personal or non-personal” in sub-r (3) would be superfluous.
[7] Butterworths Australian Legal Dictionary 1330 says in relation to substituted service “A method of serving documents. It is a process other than personal service …”.
Rule 69 significantly changes other aspects of the law relating to substituted service.   Traditionally, it could only be ordered where the Court found that the means to be employed would bring the proceedings to the attention of the person to be served.[8] This suggests that R69 was intended to significantly change the existing law.[9]
[8]    Cairns Australian Civil Procedure 9^th Ed, [4.140].
[9]    This was also the position under the former 87R 14.02, but it is not generally the case elsewhere.
If presumptive service under R69 is not substituted service as traditionally understood, there is then the further question of whether it is encompassed by s 8(1) of SEPA. If the expression in s 8(1) is not expansively interpreted to include presumptive service under R69, then s 8(4) of the SEPA precluded any presumptive service on the first defendant in this matter.
Reference was made in the course of argument to s 118A of the Supreme Court Act 1935. This is a legislative head of power, if one be needed, for R69. However, its terms are equally consistent with orders for presumptive or substituted service as I have defined them above.
The defendant’s counsel did not submit that the Order of 27 January 2012 was not a substituted service order for the purposes of s 8(1) of SEPA. Accordingly, I do not base my decision upon it.
Was the presumptive service order subject to a condition precedent?
6R 69(2) only allows service to be presumed under R69 if the conditions of the order are complied with. The first defendant argued that there can have been no presumptive service under R69 because the express condition of compliance with SEPA was not fulfilled.
The “applicable provision of” SEPA referred to in the Order was intended by me to be a reference to s 16. There is no other provision of SEPA which could have been intended and the plaintiff did not suggest that there was any ambiguity about it. It has been my fairly standard practice in making orders for presumptive service interstate to include a condition of this nature. I was aware that there was some uncertainty about whether s 16 applied to orders for presumptive service interstate. My intention was to put that uncertainty beyond doubt by making it an express condition of the Order. It was not intended to be a condition which needed only to be complied with if s 16 applied to the service by virtue of the operation of SEPA and need not be complied with if it did not so apply. What I was saying, and believed that I said, was that it was necessary to comply with the terms of s 16 by serving a Form 1 even if s 16 did not require it. To my mind it was unfair that a person served personally under SEPA obtained the benefit of s 16 and a Form 1, but a person served by presumptive service did not have that benefit.
Counsel for the plaintiff suggested that some parts of the Form 1 could not be applicable where it was served by substituted service. “Service of the attached” process, referred to in the middle of the first page of Form 1, is authorised for substituted service by s 8(1) of SEPA. If there are other differences, they are insignificant.
Counsel for the plaintiff cited Re McCormac; ex parte Taylor[10] which held that the failure to comply with the terms of a substituted service order in some respect which did not prejudice or mislead the defendant, and which had not caused any substantial injustice, would not invalidate the service. In that case there was no equivalent of 6R 60(2) making compliance with conditions of the order a condition for the service to be presumed. There is no evidence that the first defendant would have acted any differently if he had received a Form 1, and he was not shown to be prejudiced in any way because of it. This does not mean the condition is to be ignored. If personal service without also serving a Form 1 is invalid,[11] presumptive service with a like defect must also be invalid.
[10] (1985) 10 FCR 162.
[11] See Energy Conservation Systems Pty Ltd v Downer EDI Engineering Electrical Pty Ltd, above.
Hence, the service was also defective on the ground that a necessary condition precedent to the operation of the presumptive service order had not been satisfied.
Application to validate service
Counsel for the plaintiff pursued FDN14 by invoking 6R 117(1) which provides: “(1) The Court may make any order it considers necessary for the proper conduct of a proceeding or otherwise in the interests of justice”. He argued that this Rule could extend to making an order that the service effected on 30 January was valid personal service on that day. However, it is not necessary to go into the uncertainties about the breadth of this sub-rule to determine FDN14.
Counsel for the plaintiff cited the recent decision of Barrett J[12] in Re Industrial Installation and Access Systems Pty Ltd.[13]In that New South Wales case the plaintiff had served an Originating Process seeking winding up against a company at its registered office in Queensland, but without serving any Form 1. Barrett J used the dispensing power in s 467(3)(b) of the Corporations Act 2001 to dispense with the requirement in s 465AB of that Act that the application for winding up need be served on the defendant. This avoided the operation of s 16. The plaintiff’s counsel argued that 6R 117(1) conferred a similar dispensing power to s 467(3)(b), and that by analogy this Court could also dispense with service. However, it is not necessary to go into whether 6R 117(1) can be used in that way because, even if it could, it would not assist the plaintiff in this matter. What Barrett J did was to dispense with the step of service of the Originating Process and to allow the action to proceed to a final order without the defendant having been formally served. In proceedings under the Act a similar course would defeat the operation of s 8(1) and (6) of the Act which expressly require that there must be service on the defendant. If I was to follow the course taken in Re Industrial Installation and Access Systems Pty Ltd, it would mean that the first defendant had never been served, and thus s 8 had not been satisfied. The point is analogous to Elan Copra Trading Pty Ltd v J K International Pty Ltd (above) where it was held there had been no service for the purposes of s 459G of the Corporations Act, because s 16 of SEPA had not been complied with. Section 8 of the Act, like s 459G, required a definite act of formal service at a particular date.
[12] He was also the Judge who decided Energy Conservation Systems Pty Ltd v Downer EDI Engineering Electrical Pty Ltd, above.
[13] 17 September 2011, [2011] NSWSC 1032.
Even if 6R 117(1) could be applied here for the benefit of the plaintiff, I do not consider that the plaintiff has shown that it is in the interests of justice, as required by that sub-rule, that the order he seeks be made. The plaintiff has given no explanation about why the condition about the Form 1 was not complied with. I have no idea whether it was intentional or inadvertent. In seeking such an indulgence from the Court under R117(1) it is usually necessary for there for be a full and frank explanation of why the error occurred.
I have today made the following orders:
1FDN14 dismissed.
2On FDN10 action dismissed.
3Costs of action as agreed or adjudicated to be paid by the plaintiff to the defendants.
4FDN10 and FDN14 certified fit for counsel.