Norman v Cowell (No 2)

[2015] NSWSC 1366

Supreme Court

New South Wales

Medium Neutral Citation:	Norman v Cowell (No 2) [2015] NSWSC 1366
Hearing dates:	11 September 2015
Date of orders:	11 September 2015
Decision date:	11 September 2015
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Order for substituted service made. Period within which the originating process is valid for service extended to 31 October 2015.
Catchwords:	PROCEDURE – civil – pleadings – service – extension of time for service – substituted service
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 65 Uniform Civil Procedure Rules 2005 (NSW), r 10.14
Category:	Procedural and other rulings
Parties:	Melanie Adele Norman (first plaintiff) Christine Anne Humphrey (second plaintiff) Pounds Rounds Incorporated (third plaintiff) Shirley Cowell (first defendant) Mel Woods Burnell (second defendant)
Representation:	Solicitors: Goldsmith Lawyers (first and third plaintiffs) Ex parte
File Number(s):	2014/154555
Publication restriction:	None

Judgment – Ex Tempore

1. HER HONOUR: Before the Court is an application for a number of orders calculated to secure the participation in these proceedings of the second defendant, who has to date proved elusive.

2. The first order sought is to correct the way in which the second defendant is named in the pleading. The evidence satisfies me that, although reasonable enquiries were made, the first plaintiff wrongly identified the second defendant or at least used a name which is different from the name she uses in some legal contexts. The evidence satisfies me that it is appropriate to correct the name pursuant to s 65(2)(b) of the Civil Procedure Act 2005 (NSW). Accordingly, order 1 in the notice of motion will be made.

3. The second kind of relief sought is for substituted service pursuant to r 10.14 of the Uniform Civil Procedure Rules 2005 (NSW). The task contemplated by that rule of ensuring that the originating process comes to the second defendant's attention is a difficult one. Evidently there is a property registered in her name and there is a caveat on the title registered by her former partner. It appears, from the process server's enquiries, that the partner lives there and that the second defendant attends those premises from time to time to drop off or collect her children. However, there is evidence that the relationship between the second defendant and the former partner is acrimonious; that might be something of an understatement.

4. As unsatisfactory as it may be, the only method that has emerged from the extensive enquiries undertaken by the solicitor for the plaintiffs for bringing the originating process to the second defendant's attention seems to be to leave the document at the former matrimonial premises and to bring it to the attention of the ex-partner.

5. My concern about the efficacy of that proposal prompts me to think that I should not at this stage make the deeming order sought in order 4 of the notice of motion but bring the matter back for consideration of that issue (depending on the outcome of the steps proposed in order 3). However, the evidence has persuaded me that it is appropriate to make those orders as an interim step to the end sought by the plaintiffs.

6. Finally, an extension of the period within which the originating process is valid is sought. For the reasons amply established in the affidavits read by Mr Goldsmith on behalf of the plaintiffs, I am satisfied that that is appropriate, the principal reason for the delay in service of the originating process being the difficulty in locating the second defendant.

7. For those reasons I make orders 1, 2, 3 and 5 in the notice of motion, extending the period in order 5 to 31 October 2015.

8. I stand the proceedings over to 13 November 2015.

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Decision last updated: 16 September 2015