Mohareb v Office of the Director of Public Prosecutions (NSW)

In the Supreme Court of New South Wales, Griffiths AJA considered an application by the Office of the Director of Public Prosecutions (NSW) concerning the service of originating process and related documents on Mr Alexander Edward Kelso. The applicant sought orders for substituted service under rule 10.14(3) of the Uniform Civil Procedure Rules 2005 (NSW), as personal service was not practicable. The applicant also sought a warrant for Mr Kelso's arrest under Part 55 rule 10 of the Supreme Court Rules 1970 (NSW) for contempt, though this application had not been served.

The primary legal issue before the court was whether to grant leave to amend the notice of motion to specifically seek an order for substituted service under rule 10.14(3). A further issue arose regarding the appropriate method of substituted service for various documents, including a summons seeking leave to appeal, a draft notice of appeal, and a summary of argument, given the impracticality of personal service. The court also had to consider the unserved application for a warrant of arrest.

Griffiths AJA applied the principles governing substituted service, acknowledging that such orders are exceptional and require proof that the proposed method is likely to bring the documents to the attention of the person to be served. The court granted leave to amend the notice of motion to clearly seek the substituted service order. The court then made orders deeming certain documents to have been served on Mr Kelso on 22 February 2024. Furthermore, the court stipulated a detailed method for future service of an amended notice of motion, reasons for judgment, and hearing notification, involving service by email and express post to multiple addresses, including a business address and a marina. The costs of the hearing were reserved.