Kirwan v Schurig
[2014] NSWDC 222
•29 August 2014
District Court
New South Wales
Case Title: Kirwan v Schurig Medium Neutral Citation: [2014] NSWDC 222 Hearing Date(s): 29 August 2014 Decision Date: 29 August 2014 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Pursuant to Rule 10.14 UCPR an order that, instead of personal service, the Statement of Claim filed on 28 July 2014 be served on the defendant by: (a) Email at the email address [email address]; and (b) Delivering a copy to [postal address] and affixing it to the front door at that address, or if that is not possible, in the letterbox at that address.
(2) Time for service of the Statement of Claim be extended until 4pm on 5 September 2014.
(3) The defendant to file and serve a defence on or before 3 October 2014.
(4) The plaintiff to file and serve any reply on or before 15 October 2014.
(5) The matter be listed for further directions at 9:30am on 17 October 2014.
(6) The plaintiff to notify the defendant of these orders in the manner set out in paragraph 1 above by the time set out in paragraph 2.Catchwords: PRACTICE AND PROCEDURE - application for substituted service - suitability of substituted service by electronic means such as by email or social media - evidence defendant avoiding service - application for substituted service granted Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 6.2(4) and 10.14 Cases Cited: Flo Rida (aka Tramar Dillard) v Mothership Music Pty Ltd [2013] NSWCA 268
Ritson v Burns [2014] NSWSC 272
Royal Society for the Prevention of Cruelty to Animals, New South Wales v Davies [2011] NSWSC 1445
Zwambila v Wafawarova [2014] ACTSC 73Texts Cited: - Category: Interlocutory applications Parties: Plaintiff: David Kirwan
Defendant: Jacqueline SchurigRepresentation - Counsel: Plaintiff: Ms S Chrysanthou
Defendant: No appearance- Solicitors: Plaintiff: Stevens Vuaran Lawyers
Defendant: No appearanceFile Number(s): 2014/221788 Publication Restriction: None
JUDGMENT
These are proceedings for defamation arising from publication by the defendant of an email on 23 May 2014. Proceedings were commenced on 28 July 2014 and since that date the plaintiff's solicitors have endeavoured, without success, to locate the defendant for the purpose of effecting an order for substituted service. By notice of motion filed on 28 August 2014 the plaintiff seeks the following orders:
(1)Pursuant to Rule 10.14 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") an order that, instead of personal service, the Statement of Claim filed on 28 July 2014 be served on the defendant by:
(a)Email at the email address [email address]; and
(b)Delivering a copy to [postal address] and putting it under the front door at that address, or if that is not possible, in the letterbox at that address.
(2)Time for service of the Statement of Claim be extended until 4pm on 5 September 2014.
(3)The plaintiff to notify the defendant of these orders in the manner set out in paragraph 1 above by the time set out in paragraph 2.
(4)Such further or other orders as the Court deems fit or thinks necessary.
The affidavit of Kris Sabatino sworn 27 August 2014 sets out 12 attempts made to serve the defendant at her place of employment and her home address. Although a motor vehicle (a photograph of which is attached to the affidavit) identifiable as the defendant's car was parked outside the home premises, and the lights on the inside of the house were on, the occupants of the premises at which the defendant resides refused to answer the door or to contact the process server when a note was placed under the door asking the defendant to contact her. Attempts to serve the defendant at her place of work were similarly unsuccessful, as the process server was advised that the defendant was not there on each occasion when the process server called.
The orders sought seek firstly to serve the defendant by email and secondly to deliver a copy of the statement of claim to her home address by putting it under her front door, or alternatively placing the documents in the letterbox.
Service by electronic means is now common. In Royal Society for the Prevention of Cruelty to Animals, New South Wales v Davies [2011] NSWSC 1445 the defendant was served by Facebook and email. Similarly, in Zwambila v Wafawarova [2014] ACTSC 73 at [3], the defendant was served by email in the United Kingdom. I note, however, that these methods of service were considered inappropriate in Flo Rida (aka Tramar Dillard) v Mothership Music Pty Ltd [2013] NSWCA 268. In those proceedings, service by Facebook and email was considered insufficient. However, in Ritson v Burns [2014] NSWSC 272 McCallum J made an order for substituted service by email in the following circumstances:
"[12] Mr Ritson engaged a process-server, Mr Mark Slater, to effect service of the original statement of claim upon Mr Burns. On 17 January 2012, Mr Slater telephoned Mr Burns to obtain his residential address. Upon being informed of the nature of the call, Mr Burns stated:
Brendan Ritson is a criminal.
[13] That is the defamatory publication complained of in these proceedings. The full statement made was "Brendan Ritson is a criminal. I'm not going to give you my address; you can go and serve Santa Claus." As already noted, Beech-Jones J granted leave to amend the pleading to include a claim for that publication.
[14] In due course an order was made for substituted service (not in the manner suggested by Mr Burns to Mr Slater). The further amended statement of claim was served on 25 September 2012 in accordance with that order. The following day Mr Burns wrote to Mr Ritson's solicitor stating that he would not be filing a defence. Although not required by any order of the court, the solicitor subsequently gave notice of the assessment hearing by letter sent to the same address."
There are compelling reasons in the present circumstances why service should be effected by email. First of all, the email in question is the address from which the matter complained of was sent. Secondly, it is apparent, from the difficulties that the process server is having, that the defendant, by refusing to answer notes placed under her door, or to answer the door when persons knocked, is avoiding service. Additionally, I am satisfied by reason of the affidavit of Dennis Vuaran sworn 28 August 2014 that the defendant does indeed reside at the address attended by the process server, and works at the offices which have been visited by the process server.
I am accordingly satisfied that if a copy of the statement of claim is affixed to the front door at that address, as well as emailed to the defendant, that will be sufficient to bring service of the statement of claim to her attention in the manner envisaged by the Court of Appeal in Flo Rida (aka Tramar Dillard) v Mothership Music Pty Ltd, supra.
As the time for service of the statement of claim pursuant to r 6.2(4) UCPR has expired, I also extend time for service of the statement of claim to the date sought by the plaintiff namely 5 September 2014.
Orders
(1)Pursuant to Rule 10.14 UCPR an order that, instead of personal service, the Statement of Claim filed on 28 July 2014 be served on the defendant by:
(a)Email at the email address [email address]; and
(b)Delivering a copy to [postal address] and affixing it to the front door at that address, or if that is not possible, in the letterbox at that address.
(2)Time for service of the Statement of Claim be extended until 4pm on 5 September 2014.
(3)The defendant to file and serve a defence on or before 3 October 2014.
(4)The plaintiff to file and serve any reply on or before 15 October 2014.
(5)The matter be listed for further directions at 9:30am on 17 October 2014.
(6)The plaintiff to notify the defendant of these orders in the manner set out in paragraph 1 above by the time set out in paragraph 2.
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