Kirwan v Schurig - [2014] NSWDC 222

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 73

Texts Cited: -

Category: Interlocutory applications

Parties: Plaintiff: David Kirwan
Defendant: Jacqueline Schurig

Representation

- Counsel: Plaintiff: Ms S Chrysanthou
Defendant: No appearance

- Solicitors: Plaintiff: Stevens Vuaran Lawyers
Defendant: No appearance

File 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…

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 Kirwan v Schurig

Details

AGLC: Kirwan v Schurig [2014] NSWDC 222
Case: [2014] NSWDC 222
Decision Date: 29 August 2014

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the matter of Kirwan v Schurig was heard by Judge Brown. The plaintiff sought substituted service of the Statement of Claim on the defendant, who was alleged to be avoiding service of process. The plaintiff's application for substituted service was contested by the defendant, who argued that the proposed methods of substituted service were unsuitable. The court was required to determine whether the proposed methods of substituted service were appropriate and whether the plaintiff had demonstrated that the defendant was avoiding service.

The court found that the plaintiff had provided evidence that the defendant was avoiding service, including that the defendant had changed their email address and residential address, and had not responded to attempts to serve the Statement of Claim personally. The court also found that the proposed methods of substituted service were suitable, as the plaintiff had provided evidence that the defendant had access to the proposed email address and had previously communicated with the plaintiff via email. The court noted that substituted service by electronic means was an appropriate method of service in circumstances where a person was avoiding service, and that the use of social media could also be an appropriate method of service in certain circumstances.

Based on the evidence presented, the court granted the plaintiff's application for substituted service and made an order that the Statement of Claim be served on the defendant by email and by delivering a copy to the defendant's residential address and affixing it to the front door or placing it in the letterbox. The court also extended the time for service of the Statement of Claim, required the defendant to file and serve a defence, and listed the matter for further directions. The plaintiff was required to notify the defendant of the orders in the manner set out in the order.

Orders

Orders of the court

(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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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 73
Texts Cited:	-
Category:	Interlocutory applications
Parties:	Plaintiff: David Kirwan Defendant: Jacqueline Schurig
Representation
- Counsel:	Plaintiff: Ms S Chrysanthou Defendant: No appearance
- Solicitors:	Plaintiff: Stevens Vuaran Lawyers Defendant: No appearance
File Number(s):	2014/221788
Publication Restriction:	None