Ovari v Ovari
[2025] ACTSC 302
•9 August 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Ovari v Ovari |
Citation: | [2025] ACTSC 302 |
Hearing Date: | 2 August 2024; 9 August 2024 |
Decision Date: | 9 August 2024 |
Reasons Date: | 16 July 2025 |
Before: | Loukas-Karlsson J |
Decision: | See [123] |
Catchwords: | PRACTICE AND PROCEDURE – SERVICE AND EXECUTION OF PROCESS – application for substituted service and informal service – whether impracticable to effect personal service – whether alternative reasonably likely to bring document to awareness of defendants – multiple attempts to serve defendants by email and process server |
Legislation Cited: | Court Procedures Act 2004 (ACT), s 5A Court Procedures Rules 2006 (ACT), rr 261, 700, 6460, 6461 Uniform Civil Procedure Rules 2005 (NSW) |
Cases Cited: | Alstom Ltd v Sirakas [2010] NSWSC 669 Amos Removals & Storage Pty Ltd v Small [1981] 2 NSWLR 525 Attorney General for Western Australia v Lashansky [2014] WASC 42 Bradvica v Radulovic [1975] VR 434 Breust v Anderson [2024] ACTSC 182 Deputy Commissioner of Taxation v Cooney [2004] QDC 478 Foris GFS Australia Pty Ltd v Manivel [2022] VSC 482; 67 VR 561 Foxe v Brown (1984) 59 ALJR 186 Kaney v Rushton [2017] ACTSC 11 Miscamble v Phillips and Hoeflich (No 2) [1936] St R Qd 136; 10 ALJR 112 Munkarra v Fischer (1980) 5 NTR 3; 49 FLR 92 Ovari v Ovari [2025] ACTSC 63 Stowe Australia Pty Ltd v Denham Constructions Project Company 810 Pty Ltd [2014] ACTSC 402 Vista Capital Developments Pty Ltd v Talmarc Pty Ltd [2008] NSWSC 935 WFM Motors Pty Ltd v Maydwell (Supreme Court (NSW), Bryson J, 23 April 1993, unrep) |
Parties: | Attila Francis Ovari ( Plaintiff) Anna Gabriella Ovari ( First Defendant) Zoltan Laszlo Ovari (Second Defendant) Telstra Corporation Ltd (ACN 051 775 556) (Third Defendant) |
Representation: | Counsel A Costin ( Plaintiff) No appearance ( First and Second Defendant) No appearance (Third Defendant) |
| Solicitors Elringtons Lawyers ( Plaintiff) No appearance ( First and Second Defendant) No appearance (Third Defendant) | |
File Number: | SC 192 of 2024 |
LOUKAS-KARLSSON J:
Introduction
1․On 9 August 2024 I made certain orders. At that time, I indicated that reasons were reserved. The reasons now follow.
2․It is important that I note at the outset the following:
(a)Two matters, SC 192 of 2024 and ES 1 of 2024 were both listed before me on 2 August 2024 and 9 August 2024.
(b)Ms Anna Ovari and Mr Zoltan Ovari (the first and second defendants) underlined that they appeared in court only in relation to ES 1 of 2024.
(c)Therefore, there was no formal appearance by the first or second defendant in SC 192 of 2024, that is, the matter which is the subject of this judgment.
(d)Nevertheless, the first defendant and the second defendant made a number of submissions informally in the courtroom in relation to SC 192 of 2024, despite their non-appearance in that matter.
3․This is an application by Mr Attila Francis Ovari (the plaintiff) dated 22 July 2024 for an order for informal service and substituted service against the first and second defendants under rr 6460 and 6461 of the Court Procedures Rules 2006 (ACT) (CPR).[1]
4․Further, in the interests of completeness, I note that the third defendant, Telstra, did not play an active role in these proceedings and is only included in so far as an earlier order I made affected the third defendant.
5․The plaintiff sought the following orders under, the Application in Proceeding of 22 July 2024 (the application):[2]
[1] Application in proceeding at 1.
[2] Application in proceeding at 2.
1.An order under r 6461 that the defendants are taken to have been served with the following documents in relation to this proceeding on 11 June 2024 (the relevant documents):
(i)The plaintiff’s originating application dated 7 June 2024.
(ii)Affidavit of the plaintiff affirmed 7 June 2024 (June plaintiff affidavit).
(iii)Affidavit of the plaintiff’s solicitor, Mr Evelyn, affirmed 7 June 2024 (June Evelyn affidavit).
(iv)Sealed copy of my orders on 11 June 2024 (June interlocutory orders).
2.In the alternative to the above order, an order pursuant to r 6461 that the defendants are taken to have been served with the documents on a date stated by the Court.
3.An order under r 6460 dispensing with any requirement for personal service on the defendants in relation to any document required to be personally served under pt 2.18 of the CPR.
4.An order under r 6460 that any document served on the defendants in this proceeding be taken to have been served if the document has been:
(i) sent by an email to an email known to the Court (known email); or
(ii) Delivered to an address in the ACT known to the Court (known address).
5.Costs.
6․In relation to informal service, the plaintiff therefore in essence sought an order that the defendants be deemed to have been served with the relevant documents.[3]
[3] PWS at [4].
7․I heard this matter on 2 and 9 August 2024 alongside another proceeding involving the same parties (ES 1 of 2024 proceeding). On 2 August 2024, I formed the view that a further listing was required.[4] Accordingly, a further hearing was listed for 9 August 2024.[5]
[4] Transcript, 2 August at 25-6.
[5] Transcript, 2 August at 33 [34]-[40]
8․On 9 August 2024, I made orders under r 6461 deeming the defendants to have been served with the relevant documents on 11 June 2024. Under r 6460, I dispensed with any requirement of personal service on the defendants. That is, that further documents served on the first or second defendant in this proceeding are taken to be effectively served if sent to the known email address or delivered to the known physical address. Further, I formed the view that it was proper for the parties to file written submissions on costs after the publication of my reasons.
Affidavits
9․The application was supported by the following affidavits:
(a)Affidavit of the plaintiff affirmed on 19 July 2024 (July plaintiff affidavit).
(b)Affidavit of Mr Evelyn affirmed 19 July 2024 (July Evelyn affidavit).
(c)Affidavits of service of Ms Woodward sworn 25 June 2024 (the first affidavits of service).
(d)Affidavits of service of Mr Woodward sworn 28 June 2024 (the second affidavits of service).
10․At the hearing, counsel for the plaintiff outlined that there were two affidavits of service, corresponding with attempts at service on both defendants. However, counsel noted that the contents of the two affidavits are almost identical: that there were certain documents that had been left at the property and that the documents were quite visible.[6]
[6] Transcript, 9 August at pages 4-5.
11․After I adjourned the hearing on 2 August 2024, the plaintiff’s solicitor also filed another affidavit affirmed 6 August 2024 (the August Evelyn affidavit).
12․Where relevant, for context, I note that I have also referred to the events detailed in the June plaintiff affidavit and June Evelyn affidavit.
Background and procedural History
13․This proceeding is part of a family dispute litigated in this Court and the Federal Circuit and Family Court of Australia (FCFCOA). It is convenient to confine the contextual background to a discussion of what is germane to this application.
Background context
14․The plaintiff is the son of the first defendant and the older brother of the second defendant. The plaintiff affirmed that he has been estranged from the first and second defendants for many years.[7]
[7] July plaintiff affidavit at [3].
15․Mr Attila Istvan Ovari (Mr Ovari) was the father of the plaintiff and the second defendant and was married to the first defendant. Mr Ovari and the plaintiff shared the same first name (Attila) but a different middle name.
16․The plaintiff affirmed in his June affidavit that he was similarly estranged from Mr Ovari until the middle of 2022.[8] Mr Ovari had apparently informed the plaintiff that the former had been diagnosed with terminal cancer, and that Mr Ovari wanted to reconcile with his eldest son, the plaintiff. The plaintiff affirmed that Mr Ovari lived at the known address with the first and second defendant, and the second defendant’s family until late 2022.[9] The plaintiff affirmed that he and Mr Ovari would communicate and see each other more often (about once a week) from about March 2023.[10]
[8] June plaintiff affidavit at [6], [8].
[9] June plaintiff affidavit at [7].
[10] June plaintiff affidavit at [8].
17․The plaintiff stated that Mr Ovari was “constantly involved” in legal disputes with the first and second defendants from 2022 to 2024. These disputes included a proceeding for division of property and divorce brought by Mr Ovari in the FCFCOA. The plaintiff affirmed that he and other members of the Ovari family were given copies of legal documents in relation to the disputes to ensure that all were kept informed.[11]
[11] June plaintiff affidavit at [10](e)-(f).
18․These disputes also included separate proceedings initiated by the defendants against Mr Ovari.[12] It is convenient that I refer to these proceedings as the SC 74 and 86 of 2023 proceedings.[13] The plaintiff stated in his June affidavit that these proceedings sought orders in relation to land formerly co-owned by Mr Ovari and the defendants and Mr Ovari’s enduring power of attorney.[14] Proceedings in both matters were summarily dismissed on 28 February 2025 in Ovari v Ovari [2025] ACTSC 63.
[12] July plaintiff affidavit at [5](b).
[13] The court-assigned file numbers for the proceedings.
[14] June plaintiff affidavit at [10](c)-(d).
19․In Mr Ovari’s last will of 11 January 2023 (the will), affirmed generally in a codicil of 24 March 2023, Mr Ovari named the plaintiff as his executor and trustee of his will.[15] Mr Ovari stated that the new will was made in contemplation of his divorce from and financial settlement with the first defendant.[16] The will also apparently revoked a previous will.[17]
[15] Annexed to the July plaintiff affidavit at 12.
[16] July plaintiff affidavit at 1.
[17] June plaintiff affidavit at [37].
20․On 18 March 2024, the FCFCOA made a divorce order in relation to Mr Ovari and the first defendant, with the divorce to take effect on 26 March 2024.[18] The plaintiff stated in his June affidavit that he understood from discussions with Mr Ovari that “almost” all contact between Mr Ovari and the defendants (since the former had left the known address) now occurred in court, and that on the few occasions where Mr Ovari came face-to-face outside court with the defendants, the defendants were “hostile”.[19]
[18] June plaintiff affidavit at 29.
[19] June plaintiff affidavit at 3 [11].
21․On 4 May 2024, Mr Ovari died.[20] Upon Mr Ovari’s death, the plaintiff became the defendant in the SC 74 and 86 of 2023 proceedings in his capacity as the executor of Mr Ovari’s estate.[21] The plaintiff’s solicitor in this case also acted for Mr Ovari in the proceedings in the FCFCOA, and in the application by Mr Ovari to terminate his marriage with the first defendant via divorce.[22] The plaintiff accordingly instructed the plaintiff’s solicitor to apply for a grant of probate.[23] At the earlier urgent hearing in this matter on 11 June 2024, counsel for the plaintiff submitted that given Mr Ovari’s death and the Ovari’s matrimonial home having by that point been dealt with in the FCFCOA, the SC 74 and 86 of 2023 proceedings had become redundant.[24]
[20] Death certificate annexed to the June plaintiff affidavit at 13.
[21] July plaintiff affidavit at [5](b).
[22] July Evelyn affidavit at [5]-[6].
[23] June plaintiff affidavit at [22](a); June Evelyn affidavit at [5].
[24] Transcript, 11 June at 13 [19]-[30]
22․The plaintiff’s solicitor accordingly notified the Court of Mr Ovari’s death on 24 May 2024 and sought an adjournment of a listing in the SC 74 and 86 of 2023 proceedings until 1 September 2024.[25] The defendants were copied in this email, and the plaintiff stated that to his knowledge neither defendant was aware of Mr Ovari’s death until this email.[26] For his part, the plaintiff stated that, to his understanding, the relationship between Mr Ovari and the defendants remained hostile until Mr Ovari’s death.[27] The plaintiff affirmed that Mr Ovari did not want either the first or second defendant to attend his funeral, and the plaintiff also did not inform the first or second defendant of Mr Ovari’s death or funeral date due to concerns that the defendants “would appear and create a disturbance”.[28]
[25] Annexure E to the June plaintiff affidavit at 32.
[26] June plaintiff affidavit at [22].
[27] June plaintiff affidavit at [9].
[28] June plaintiff affidavit at [21]. See also Transcript, 2 August at 18 [16]-[22].
The urgent application
23․I now turn to the genesis of the current proceeding, namely an urgent application filed by the plaintiff dated 7 June 2024 (the June application).[29] This application was supported by the June affidavits of the plaintiff and of his solicitor. In summary, the application was borne out of the plaintiff’s concerns that the defendants were attempting to interfere with Mr Ovari’s estate.[30] Specific incidents that the plaintiff cited included:
[29] Referred to in [21].
[30] July plaintiff affidavit at [11](a); June plaintiff affidavit at [48]; June Evelyn affidavit at [8].
(a)The second defendant transferring Mr Ovari’s telephone number with the third defendant to himself.[31]
[31] See June plaintiff affidavit at [23]-[28]; July plaintiff affidavit at [11](b)(i),
(b)Attempts to access Mr Ovari’s email[32] and telephone banking[33] accounts.
[32] June plaintiff affidavit at [29]-[31], [34]; July plaintiff affidavit at [11](b)(i).
[33] June plaintiff affidavit at [34]; July plaintiff affidavit at [11](b)(ii).
(c)The resetting of Mr Ovari’s password for his account with Amway.[34]
[34] June plaintiff affidavit at [38]-[40], [52].
(d)The plaintiff receiving four original death certificates for Mr Ovari, with three addressed to the second defendant.[35]
[35] June plaintiff affidavit at [32]-[33].
(e)The amendment of Mr Ovari’s death certificate to list Mr Ovari as “married”.[36] The plaintiff stated that the first defendant had produced a statutory declaration to the Birth, Deaths, and Marriages Registry that declared the first defendant as still being married to Mr Ovari at the time of his death.[37]
[36] June plaintiff affidavit; Annexure K.
[37] June plaintiff affidavit at [41]-[43]; July plaintiff affidavit at [11](d)(iv).
(f)The defendants potentially using a revoked will of Mr Ovari dated 14 August 2012 (the revoked will)[38] and the incorrect death certificate for Mr Ovari.[39]
[38] Will attached as annexure K to the June affidavit; the will was also produced in an email to the plaintiff on 6 June 2024; Transcript, 11 June at 9 [34]-[43].
[39] June plaintiff affidavit at [44]-[45], [53].
24․I heard the application ex parte on an urgent basis on 11 June 2024. Relevantly, I queried counsel for the plaintiff on whether it were possible for the defendants’ solicitors to be served so that the matter could be heard with the defendants present. Counsel for the plaintiff informed me that the defendants were self-represented before this Court and the FCFCOA.[40] Accordingly, it was, in counsel’s submission, unlikely that the defendants would be represented to oppose the June application, especially on short notice.[41] Relevantly, counsel for the plaintiff noted that the plaintiff was willing to undertake to serve the defendants via email – this being the means by which the plaintiff had served them in the past. However, counsel noted that the defendants had, in counsel’s experience, avoided service on “numerous occasions”.[42]
[40] Transcript, 11 June at 3 [32]-[46]
[41] Transcript, 11 June at 4 [1]-[4].
[42] Transcript, 11 June at 4 [6]-[11].
25․I was satisfied that there was a serious question to be tried[43] and that there had been attempts by the plaintiff to rectify the situation.[44] Given the multiple attempts made by the second defendant to access Mr Ovari’s accounts, I was also satisfied of the urgency of the June application.[45] Further, I was also satisfied that damages would not have been adequate in this case[46] given the sensitive information (including legal advice)[47] contained in Mr Ovari’s email accounts that is relevant to the separate proceedings.[48] Finally, I was also satisfied that the balance of convenience favoured the making of the interim orders.[49]
[43] Transcript, 11 June at 8 [4]-[5].
[44] Transcript, 11 June at 8 [5]-[9].
[45] Transcript, 11 June at 16 [[15]-[17].
[46] Transcript, 11 June at 12 [32]-[36].
[47] Transcript, 11 June at 11 [45]-[47]; June Evelyn affidavit at [10].
[48] Transcript, 11 June at 16 [21]-[25].
[49] Transcript, 11 June at 16 [30]-[34].
26․Accordingly, I made the following orders on 11 June 2024:
(a)Pursuant to r 261(2)(b) of the CPR, the plaintiff is appointed as the personal representative of the estate of Mr Ovari for the purposes of carrying on this proceeding.
(b)No later than 4.00pm on 12 June 2024, each of the first defendant and the second defendant must surrender to the Registrar-General any original Death Certificate pertaining to Mr Ovari in which the marital status of the deceased is described as “Married” (the Incorrect Death Certificate).
(c)Prior to 12.00pm on 13 June 2024, each of the first defendant and the second defendant must:
(i) give notice in writing to each person, business or government authority (whether of a State or Territory or of the Commonwealth of Australia or of any other country) to whom a copy of the Incorrect Death Certificate has been produced that the Incorrect Death Certificate has been cancelled; and
(ii)produce a copy of each notice described above to the plaintiff’s solicitor; and
(iii)provide the plaintiff’s solicitor with the contact information for each person, business or government department to whom a notice described in paragraph (c)(1) was issued.
(d)Prior to 12.00pm on 13 June 2024 each of the first defendant and second defendant must destroy any photocopy of the Incorrect Death Certificate which is in their possession or control.
(e)Prior to 12.00pm on 13 June 2024, each of the first defendant and second defendant must permanently delete any electronic copy of the Incorrect Death Certificate stored on any electronic device in their possession or control.
(f)Until further order of the court, each of the first and second defendant are restrained by injunction from:
(i) representing to any person, business, or government agency (whether of a State or Territory or of the Commonwealth of Australia or of any other country) that the first defendant was married to Mr Ovari at the date of his death;
(ii) representing to any person that the first defendant or the second defendant have the authority to represent the interests of the estate of Mr Ovari;
(iii) accessing or attempting to gain access to any bank account belonging to Mr Ovari;
(iv) accessing or attempting to gain access to any email account belonging to Mr Ovari;
(v) making telephone calls from, sending text messages from, or otherwise communicating from or using a telephone number known to the Court;
(vi) representing to any person, business or government agency (whether of a State or Territory or of the Commonwealth of Australia or of any other country) that the revoked will of the deceased is the valid last will of the deceased.
(g)The third defendant must do all things required to:
(i) disable the ability for any person other than the third defendant (or an officer, employee or agent of the third defendant) to access the telephone account to which the telephone number known to the Court is attached, including the capacity to make or receive telephone calls, or to send or receive text messages; and
(ii) disable the ability for any person other than the third defendant (or an officer, employee or agent of the third defendant) to access any account information predating 24 May 2024 which relates to the telephone account to which the telephone number known to the Court is attached.
(h)The plaintiff is to serve a copy of the plaintiff’s June application and any supporting affidavits on the first and second defendant together with a copy of the orders I made.
(i)The plaintiff’s solicitor undertakes to provide a copy of the June application and supporting affidavits to the first defendant and second defendant together with a copy of these orders by email no later than 5.00pm on 11 June 2024 to the known email.
27․In relation to the orders for service, I note that although not covered by the terms of the orders, counsel for the plaintiff confirmed that the plaintiff would be serving the third defendant with the June interlocutory orders as well.[50] The reason why the plaintiff did not seek an express order in the June listing was that, in counsel’s view, the third defendant would be unlikely to seek to appear in the matter once the June interlocutory order was served.[51]
[50] Transcript, 11 June at 32 [20]-[22].
[51] Transcript, 11 June at 32 [27]-[30].
28․Counsel for the plaintiff clarified in the hearing on 11 June 2024 that the orders the plaintiff was seeking were sought on an interim basis, with the prospect that the matter will return to be heard again before me.[52]
[52] Transcript, 11 June at 6 [14]-[30].
29․For completeness, I note that while the first and second defendant were enjoined from representing to any person, business, or government agency that the revoked will is the valid last will of Mr Ovari, my orders shall not be construed as precluding either or both of the defendants from:
(a)bringing a proceeding before this Court or otherwise contending before the Court that any later will or codicil of Mr Ovari is invalid; or
(b)bringing a proceeding before this Court or otherwise contending before the Court that the revoked will is the valid will of the deceased; or
(c)obtaining legal advice or representation with respect to the validity or otherwise of the revoked will.
30․Further, I noted that the plaintiff gave the usual undertaking as to damages under r 700 of the CPR.
After 11 June 2024
31․The events that occurred after I made my orders on 11 June 2024 are of particular significance in this application, and I will discuss them in a more detailed manner later in these reasons. It is sufficient here, to note a number of relevant matters.
32․On 3 July 2024 the plaintiff was granted probate by this Court. The plaintiff stated that since the grant of probate the plaintiff has commenced administration of Mr Ovari’s estate.[53]
[53] July plaintiff affidavit at [13]-[14].
33․The plaintiff stated he contacted Amway on 9 July 2024 by email, providing a copy of the grant of probate.[54] On 10 July 2024, a representative from Amway contacted the plaintiff, informing him that, among other things, Mr Ovari’s United States Amway account had been “resigned” on request from the first defendant:
[54] July plaintiff affidavit at [14].
As the United States account was a Multiple Business account of Australia, [the first defendant] named on both the Australian [a]ccount, and the death certificate as surviving spouse, the resignation was approved.[55]
[55] Annexure B to the July plaintiff affidavit at 20.
34․The plaintiff also provided affidavit evidence that the plaintiff contacted the representative from Amway in relation to access to the Amway online account information on 16 and 17 July 2024. During the course of this inquiry, the representative was asked to advise whether the incorrect death certificate or will had been provided to Amway. The representative answered, in essence, in the affirmative:
[The first defendant] requested [Mr Ovari] had passed and to resign him from the Amway accounts [and the request] was received 3 June 2024, along with a copy of a Death Certificate. A copy of a Will (dated 2012) was provided later, on July 16th.[56]
[56] Annexure C to the July plaintiff affidavit at 24.
35․The plaintiff noted that he had been advised by his solicitors that no notice was provided by either defendants that the incorrect death certificate had been produced to Amway. For these reasons, the plaintiff expressed concern that the first defendant may be contravening the June interlocutory orders.[57]
[57] July plaintiff affidavit at [21].
36․As underlined to by counsel for the plaintiff,[58] the current application arises from attempts made by the plaintiff under the June interlocutory orders to serve the defendants with the following documents relevant to the June application:
[58] Transcript, 2 August at 24 [18]-[29].
(a)The June application.
(b)Any supporting affidavits to the June application. In this case, these are the June plaintiff affidavit and the June Evelyn affidavit.
(c)A copy of my orders of 11 June 2024 (the June interlocutory orders).
Relevant law
37․As referred to at the outset of this judgment, this is a highly unusual substituted service application in that the defendants were in fact informally present during the hearing of the application on 2 August 2024 and 9 August 2024.[59] Nevertheless, the defendants were not formally present.
[59] See also Transcript, 9 August at 7 [1]-[8].
38․Relevant to substituted service, r 6460 provides as follows:
6460 Substituted service
(1)This rule applies if these rules require or allow a document in a proceeding to be served in a particular way (the authorised way).
Note This rule does not apply to a criminal proceeding (see r 4006 (Criminal proceedings—application of pt 6.8)).
(2) A party to the proceeding may apply to the court for an order allowing the document to be served in a particular way (the alternative way).
Note Pt 6.2 (Applications in proceedings) applies to an application for an order under this rule.
(3)The court may make the order if satisfied that—
(a)it is impracticable, for any reason, for the document to be served in the authorised way; and
(b)the alternative way is reasonably likely to bring the document to the attention of the person to be served.
(4)If the court makes the order, it may, in the order, provide that the document is taken to have been served on the happening of a stated event, at a stated time or at the end of a stated period.
…
(6) For any provision of these rules requiring personal service of a document on a person, service of the document on the person in accordance with an order under subrule (3) is taken to be personal service of the document on the person.
(Emphasis added)
39․It is clear that the power remains discretionary: see also Stowe Australia Pty Ltd v Denham Constructions Project Company 810 Pty Ltd [2014] ACTSC 402 at [31] (Mossop M, as his Honour then was) (Stowe Australia). However, the Court must first be satisfied that it is both impracticable, for any reason, for the document to be served in the authorised way, and that the alternative way is reasonably likely to bring the document to the attention of the person to be served.
40․The orthodox test of whether service in the authorised way is “impracticable” is whether such service is a “practical impossibility”: see Kaney v Rushton [2017] ACTSC 11 at [65] (Refshauge J) (Kaney). In Foxe v Brown (1984) 59 ALJR 186 (Foxe), Mason J (at [15]-[16]) made the following important observations as to what is required from a party seeking an order for substituted service:
In general, for an order for substituted service to be made it must be shown: (a) that the plaintiff, using reasonable effort, is unable to effect personal service; and (b) that the method of substituted service requested is one which is likely to cause the writ to come to the knowledge of the defendant: Porter v. Freudenberg [1915] 1 K.B. 857.
…
I can see no basis for thinking that the standard of diligence or effort required of a plaintiff in seeking out a defendant in a case where substituted service is sought on an insurer is any greater than that which would be required where substituted service is sought by some means which would be likely to cause the writ to come to the knowledge of the defendant. That standard, however it is expressed, is one of reasonableness so as to show a practical impossibility of personal service. Furthermore, the question is not whether reasonable effort has been shown by the plaintiff over a particular period but whether at the date on which the application for substituted service is made, the plaintiff, using reasonable effort, is unable to serve the defendant personally.
(Emphasis added.)
41․As such, it needs to be shown that a party, despite exercising reasonable effort, was nevertheless unable to serve the other party personally or otherwise in the authorised way.
42․In ordinary cases, it would not be sufficient for there simply to be a couple of failed attempts to personally serve a document: Stowe Australia at [16]-[17], [63]. Indeed, in some cases, extensive efforts may still prove insufficient to satisfy the requirement of impracticability: Munkarra v Fischer (1980) 5 NTR 3; 49 FLR 92 at 5-6 (Gallop J).
43․Nevertheless, as observed by Palmer J in relation to a similar rule in the Uniform Civil Procedure Rules 2005 (NSW), “impracticable” means neither “impossibility” or “inconvenience” – whether service is “impracticable” must be decided according to the particular circumstances of the case, at the time of the application: Alstom Ltd v Sirakas [2010] NSWSC 669 at [40]. The Court must also have regard to the requirement to do justice to both parties, in the following sense:
(a)To do justice to a plaintiff who has demonstrated a prima facie case which may be defeated or frustrated if personal service (or authorised service) is insisted upon.
(b)To do justice to a defendant who is entitled to receive “proper and efficacious” notice of proceedings commenced against them.
44․In Attorney General for Western Australia v Lashansky [2014] WASC 42, Edelman J (as his Honour then was) observed that:
Justice Mason [in Foxe] did not read 'unable' literally. His Honour explained that:
[Quoted extract above from [15] of Foxe]
The requirement of inability after reasonable effort is less strict than strict inability or 'practical impossibility'. It appears to mean a lack of success after reasonable effort.
45․Finally, the phrase “for any reason” in r 6460(3)(a) renders it plain that “impracticability” is not limited to the ability to locate and physically serve the recipient of a document in an authorised manner: Stowe Australia at [63] (Mossop M). Thus, it is relevant to consider the procedural circumstances of a matter, such as considerations of time and the interests of justice in proceeding with a case: Stowe Australia at [63]-[64].
46․I now turn to the requirement that the alternative way must be “reasonably likely” to bring the document to the attention of the person to be served. This requirement reflects the underlying purpose of substituted service, as expressed by the High Court (Starke J, Dixon and McTiernan JJ agreeing) in Miscamble v Phillips and Hoeflich (No 2) [1936] St R Qd 136; 10 ALJR 112 at [2]:
The object of substituted service, the primary object, is to bring to the knowledge of the person in respect of whom substituted service is sought the whole proceedings, so that he can take such steps as he thinks proper to protect his interests and rights. It is not proper to substitute service of process in a Court of law when there is no belief that the service will bring the proceedings to the knowledge of the person in question or of any person representing his interests.
(Emphasis added.)
47․As such, the Court must consider whether the nominated alternative method of service is one “which will in all reasonable probability, if not certainty, be effective to bring knowledge of the writ or the notice of the writ …” to the other party: Porter v Freudenberg [1915] 1 KB 857 at 889, cited in Kaney at [65] (Refshauge J); see also Amos Removals & Storage Pty Ltd v Small [1981] 2 NSWLR 525 at 528 (Hunt J) (Amos Removals).
48․Relevantly, alternative ways of service which courts have allowed, include leaving the documents in a letterbox of a party’s property in circumstances where a previous knock on the door was unanswered: see Breust v Anderson [2024] ACTSC 182 at [11]-[12] (although in that case further attempts to knock on the door on a different date were deterred by reports of a “large dog”). Indeed, post generally has been accepted as an appropriate alternative means: see discussion in obiter in Bradvica v Radulovic [1975] VR 434 at 439-440 (Gillard J). Substituted service may also take place through email in some circumstances, although particular care should be taken where the party served is otherwise unaware of the proceeding in question: see Foris GFS Australia Pty Ltd v Manivel [2022] VSC 482; 67 VR 561 at [9], [56]-[60] (Elliott J).
49․In this case, the plaintiff seeks to dispense with a requirement of personal service, in so far as pt 2.18 of the CPR requires a document be personally served. The alternative method of service proposed by the plaintiff is through sending an email to the known email or delivery to the known address.
50․Turning to r 6461, the rule reads as follows:
6461 Informal service
(1) This rule applies if—
(a)a document is not served on a person as required or allowed by this part but the document or a copy of it comes to the notice of the person; and
(b)the court is satisfied that the document came to the person’s notice on or before a particular day.
Note This rule does not apply to a criminal proceeding (see r 4006 (Criminal proceedings—application of pt 6.8)).
(2)The court may, by order, decide that the document was served on the person on the day stated in the order.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order under this rule.
(3)For any provision of these rules requiring personal service of a document on a person, the document is taken to have been personally served on the person on that day.
51․As is apparent, both rules are related in so far as they allow service to occur outside of the “ordinary” means of service. An informal service under r 6461 can be seen as a form of “retrospective” substituted service: Kaney at [60] (Refshauge J).
52․The requirement under r 6461 is “somewhat greater” than the requirement under r 6460(3)(b), in that it demands more than the Court being satisfied merely that a method would with reasonable probability be effective to bring notice of the process to a party: Kaney at [65]; cf Amos Removals.
53․In Kaney (at [60]), Refshauge J also observed that, on the authorities, what emerges as important is the requirement that the document comes to the actual notice of the person: CPR r 6421(1)(b). That is, the Court must be satisfied that there was actual notice of the proceedings: Kaney at [65].
54․While it is essential that the relevant documents actually come into the possession of the person to be served, this may be inferred from the circumstances: Kaney at [62], citing Deputy Commissioner of Taxation v Cooney [2004] QDC 478. For example, actual notice may be inferred from the fact that a party appeared in Court represented by a solicitor on a conditional appearance or by the retention of a solicitor who communicated on behalf of and subsequently appeared in Court for the party: Kaney at [63]-[64], citing WFM Motors Pty Ltd v Maydwell (Supreme Court (NSW), Bryson J, 23 April 1993, unrep) and Vista Capital Developments Pty Ltd v Talmarc Pty Ltd [2008] NSWSC 935.
The evidence concerning service
55․It is appropriate at this juncture to set out the available evidence before me in relation to service. As foreshadowed above at [9], the plaintiff has filed significant affidavit evidence from both the plaintiff, his solicitor, and two process servers, and it is convenient to discuss the affidavit evidence here. The defendants did not formally appear, file any affidavit evidence nor file written submissions.
56․I will first outline what the plaintiff stated concerning the means of contacting the defendants, before turning to the plaintiff’s solicitor’s affidavit evidence as to the historical interaction with the defendants and finally, the steps taken to serve the first and second defendants in this matter.
The plaintiff’s evidence: known means of contacting the defendants
57․In his July affidavit, the plaintiff detailed that he was aware of the following means of contacting the defendants:
(a)The known address, which was nominated as an address for service in the SC 74 and 86 of 2023 and ES 1 of 2024 proceedings, and where the plaintiff had lived as a child. The plaintiff also identified the home phone number for this address.[60]
[60] July plaintiff affidavit at [7].
(b)The known email, being the email nominated as an email address for service in the SC 74 and 86 of 2023 and ES 1 of 2024 proceedings.[61] To the plaintiff’s knowledge and understanding, the known email was used as a primary shared email account by the defendants.[62]
[61] July plaintiff affidavit at [5](b)], [5](c)
[62] July plaintiff affidavit at [5].
(c)An email address belonging to the first defendant listed on the Amway account. The plaintiff stated that the plaintiff learned of this email after obtaining access to the Amway account from the grant of probate.[63]
[63] July plaintiff affidavit at [6].
(d)The mobile numbers of the first and second defendant, with the latter being listed as a contact phone number in the SC 74 and 86 of 2023 and ES 1 of 2024 proceedings.[64]
[64] July plaintiff affidavit at [7](a)-(b).
58․The plaintiff also affirmed that he is unaware if either of the defendants have social media accounts. While the plaintiff was aware the defendants had been employed as casual teachers, the plaintiff was unaware whether the defendants continued to do so and in which schools.[65] Similarly, the plaintiff affirmed that he was unaware of the frequency with which they work, or the date and time when the defendants might be expected to be present at any workplace.[66]
[65] July plaintiff affidavit at [9].
[66] July plaintiff affidavit at [9].
59․Ultimately, the plaintiff stated that he was aware of no other means of contacting the defendants other than:
(a)by delivering or posting documents to the known address.
(b)by email.
(c)by telephone.[67]
[67] July plaintiff affidavit at [10].
60․In his July affidavit, the plaintiff’s solicitor affirmed that he was aware of the following additional means to contact the defendants:
(a)Another phone number for the second defendant, obtained through the plaintiff after the plaintiff reviewed Mr Ovari’s properties.[68]
[68] July Evelyn affidavit at [45].
(b)Another phone number for the first defendant, obtained through the plaintiff after the plaintiff reviewed Mr Ovari’s properties.
61․The plaintiff’s solicitor also annexed the originating documents for the SC 74 and 86 of 2023 proceedings, which relevantly listed the known address, the known email, and the first phone number for the second defendant.[69]
[69] Annexure MJE-3 to the July Evelyn affidavit.
The plaintiff’s evidence: past interactions with the defendants
62․In his July affidavit, the plaintiff’s solicitor gave an account of his prior interactions with the defendants while representing Mr Ovari in other proceedings. It is convenient to summarise this affidavit evidence. This provides relevant background context.
63․The plaintiff’s solicitor stated that his experience with the defendants over the 17 months preceding the date of the July Evelyn affidavit (19 July 2024) has led him to believe that:
[the defendants] have attempted to avoid service in relation to the proceedings commenced by [Mr Ovari], or otherwise deliberately ignored correspondence sent to them which contains information that is unfavourable to their interests.[70]
[70] July Evelyn affidavit at [7].
64․First, the plaintiff’s solicitor gave the following evidence in relation to a listing for the SC 86 of 2023 proceeding:
(a)Another solicitor for Mr Ovari (Mr Turini) had informed the plaintiff’s solicitor that there had been a failed attempt to serve originating processes and supporting documents on 27 February 2023 at the known address, with nobody answering the door.[71] These documents appeared to relate to a proceeding before the FCFCOA (family law documents), with Mr Turini having carriage of the matter.[72]
[71] July Evelyn affidavit at [10].
[72] July Evelyn affidavit at [10].
(b)The plaintiff’s solicitor first met the defendants on 28 February 2023 in a courtroom of this Court. The defendants apparently refused to accept the family law documents,[73] with the second defendant telling the plaintiff’s solicitor that he “can’t serve [the second defendant] in a court”.[74]
[73] July Evelyn affidavit at [11]-[12].
[74] July Evelyn affidavit at [12].
(c)The defendants also refused to accept a bundle of documents that the plaintiff’s solicitor intended to tender on 28 February 2023, with the plaintiff’s solicitor instead placing the bundle on a bench next to the plaintiff’s solicitor.[75]
[75] July Evelyn affidavit at [14].
(d)At the conclusion of the hearing on 28 February 2023, the defendants declined to accept the family law documents on the basis that they would not accept documents while they were in Court. [76]
[76] July Evelyn affidavit at [15].
(e)As the plaintiff’s solicitor walked to the Court lobby, the plaintiff’s solicitor observed the defendants walking “hurriedly in a different direction” to him. As the plaintiff’s solicitor was coming down the stairs, the plaintiff’s solicitor gave evidence that he stopped and offered to meet the defendants outside the Court to give the family law documents. The plaintiff’s solicitor stated that the second defendant told him in response that the defendants could not do so and that they were “in a hurry”.[77]
[77] July Evelyn affidavit at [16].
65․In relation to this encounter at the stairs, the plaintiff’s solicitor gave evidence that he formed the impression that while the defendants were in a hurry (as they were walking very quickly), the defendants appeared to be in hurry to “get away from [him]” and not to leave the Court.[78] The defendants were said to have taken a “less direct” route towards the exit of the Court than the plaintiff’s solicitor.[79] The plaintiff’s solicitor gave evidence that he formed an impression that the defendants were seeking to avoid running into him at the exit to the Court and to avoid the possibility (in his view) that the plaintiff’s solicitor might attempt to serve the defendants outside the Court.
[78] July Evelyn affidavit at [17].
[79] July Evelyn affidavit at [17]
66․The July Evelyn affidavit noted a subsequent attempt to call the defendants at around 1.00pm on 6 March 2023[80] to ask the defendants to resend an email to the Registrar of the Court requesting the matter be relisted.[81] The plaintiff’s solicitor called the second defendant’s phone number. The call was connected but not answered.[82] The July Evelyn affidavit is unclear if the plaintiff’s solicitor then attempted to call the second defendant’s phone number again.[83]
[80] July Evelyn affidavit at [18].
[81] July Evelyn affidavit at [18]-[19].
[82] July Evelyn affidavit at [18].
[83] July Evelyn affidavit at [52].
67․At around 1.15pm, the plaintiff’s solicitor received a call from a number identified as belonging to the second defendant. The call was immediately terminated by the caller after the plaintiff’s solicitor identified himself through a customary greeting (“Elringtons, [the solicitor’s first name] speaking”).[84] File notes for this series of phone calls were included in the July Evelyn affidavit.[85]
[84] July Evelyn affidavit at [20, [53].
[85] Annexure MJE-6 to the July Evelyn affidavit.
68․Separately, the plaintiff’s solicitor also gave evidence of attempts to contact the defendants through the second defendant’s phone number on 2 May 2023 on three occasions. Despite leaving messages requesting a callback, the plaintiff’s solicitor did not receive a return call on each occasion.[86] File notes of these calls were similarly annexed to the July Evelyn affidavit.[87]
[86] July Evelyn affidavit at [54]-[56].
[87] Annexure MJE-2 to the July Evelyn affidavit at 42-44.
69․The plaintiff’s solicitor stated that the defendants again refused to receive the family law documents (further attempts to serve the documents personally having failed) and another tender bundle the plaintiff’s solicitor prepared in a listing on 7 March 2023 in the SC 86 of 2023 proceeding.[88] Of particular relevance, the second defendant raised with the presiding judge, McWilliam AsJ (as her Honour was then), his objection to being served with documents while at Court.[89] An extract of the transcript of this listing was annexed to the Evelyn affidavit,[90] and I note the following exchange during which her Honour stated that service could not take place in the courtroom:
[88] July Evelyn affidavit at [22]-[24].
[89] July Evelyn affidavit at [25].
[90] Annexure MJE-1 to the July Evelyn affidavit.
[The second defendant]: Excuse me. Is it possible – [the plaintiff’s solicitor] wants to serve something. I said, ‘You’re not allowed to serve it in a courthouse’ and he says he doesn’t believe – that’s not the case …
[The first defendant]: He’s giving us all this ---
…
[The second defendant]; He’s harassing us.
[The plaintiff’s solicitor]: --- [to her Honour] you may recall, on the last occasion we mentioned there are proceedings that are on next week in the Federal Circuit [and] Family Court of Australia.
HER HONOUR: Yes.
[The plaintiff’s solicitor]: We have attempted to serve those documents multiple times on the [the defendants] and they have refused to accept the documents from our process servers, and they have refused to acknowledge receipt of the documents. I attempted to give them last time. The [defendants] refused to accept them, on the grounds that we are in a courtroom… I offered to give to them out the front of the court and then they left and did not accept the documents. I have them here. They’re right here. It’s in court next week,
HER HONOUR: Not allowed.
[The plaintiff’s solicitor]: Understood, your Honour. Thank you.
…
HER HONOUR: Now, some people have a different belief about this. [The plaintiff’s solicitor] was clarifying it with me and I have indicated it is my firm view that original personal service of documents is not to take place in the courtroom – in the court precinct. It may take place outside.
[The first defendant]: Thank you.
70․Nevertheless, her Honour also proceeded to give a warning to the defendants. Her Honour strongly encouraged the defendants not to avoid service of documents outside the court precinct:
HER HONOUR: Now, having said that, the avoidance of service is also not something to be encouraged. So if you know that there are proceedings involving you that are occurring next week, it’s very much in your interests to defend it. So I would strongly encourage you not to avoid service outside the court precinct.
71․Notwithstanding this strong encouragement, the plaintiff’s solicitor stated in the July affidavit that the defendants ignored his attempts to organise a time for service of the family law documents outside Court at the conclusion of the listing,[91] with the second defendant requesting assistance from a court officer (a request the officer refused) to make the plaintiff’s solicitor stop “harassing” the defendants.[92]
[91] July Evelyn affidavit at [26].
[92] July Evelyn affidavit at [26].
72․In addition to these interactions during the listing, the plaintiff’s solicitor’s affidavit evidence was that he had observed the defendants denying knowledge of correspondence that the solicitor or other members of his office sent to the defendants’ address for service. The plaintiff’s solicitor’s affidavit evidence affirmed that this has been the case with the first defendant in Mr Ovari’s application for divorce and in relation to costs orders made against the second defendant.[93]
[93] July Evelyn affidavit at [27].
73․The plaintiff’s solicitor’s affidavit evidence (July affidavit) was that the defendants’ behaviour became “particularly pronounced” in January to February 2024, [94] with the July Evelyn affidavit detailing, amongst other things:
[94] July Evelyn affidavit at [28]. See also a letter in Annexure MJE-2 to the July Evelyn affidavit at 12.
(a)After an appearance for the SC 74 and 86 of 2023 proceedings on 1 February 2024, the second defendant claimed that he did not recall an email that the plaintiff’s solicitor sent on 30 January 2024 in reply to an email from the second defendant.[95] A copy of this email was annexed to the July Evelyn affidavit.[96]
[95] July Evelyn affidavit at [33].
[96] Annexure MJE-2 to the July Evelyn affidavit at 8.
(b)On 1 February 2024, the second defendant stated to the Court words to the effect of ‘there are still contravention applications in the [Federal Circuit and Family Court] that haven’t been heard yet”.[97] The plaintiff’s solicitor stated that he had written to the defendants on this issue on 22 January 2024, observing that the second defendant had failed to appear in the hearing before the FCFCOA. A copy of the letter was annexed in the July Evelyn affidavit.[98]
[97] July Evelyn affidavit at [35].
[98] July Evelyn affidavit at [37].
74․The plaintiff’s solicitor wrote another letter to the defendants on 1 February 2024, which was annexed to the July Evelyn affidavit. The letter noted the correspondence sent in January 2024, and noted that the plaintiff’s solicitor did not accept that the defendants had not been receiving the plaintiff’s solicitor’s correspondence. The plaintiff’s solicitor also alleged that the defendants only chose to engage with correspondence which benefited them.[99]
[99] Annexure MJE-2 to the July Evelyn affidavit at 13.
75․Following this, the plaintiff’s solicitor affirmed that he spoke to a person he believed to be the second defendant over the phone on 7 February 2024 regarding whether the defendants were seeking consent from the plaintiff to discontinue the proceeding.[100] Although the person suspected to be the second defendant was apparently initially responsive, the second defendant quickly became non-responsive and the plaintiff’s solicitor ended the call shortly afterwards.[101] A file note of this call is also annexed to the July Evelyn affidavit.[102]
[100] July Evelyn affidavit at [57]-[58].
[101] July Evelyn affidavit at [57].
[102] Annexure MJE-2 to the July Evelyn affidavit at 12; July Evelyn affidavit at [39].
The plaintiff’s evidence: attempts to serve the defendants
76․In the July Evelyn affidavit, the plaintiff’s solicitor detailed attempts made to serve the defendants with the documents in this matter.
77․The plaintiff’s solicitor gave evidence that he gave instructions to Civic & Commercial Mercantile Services to effect personal service on the defendants at the known address on 11 June 2024.[103] The plaintiff’s solicitor’s office was apparently informed on 2.48pm on 11 June 2024 that personal service had been attempted, and that the relevant documents had been left in a “prominent position in the front door” of the known address”.[104]
[103] July Evelyn affidavit at [46].
[104] July Evelyn affidavit at [59].
78․I interpolate to note that this appears to be a reference to the events detailed in the first affidavits of service of 25 June 2024. In the affidavits, Ms Woodward stated that she served the first and second defendants with:
(a)A letter from the plaintiff’s solicitors dated 11 June 2024.
(b)The June interlocutory orders.
(c)The June application.
(d)The June plaintiff affidavit and the June Evelyn affidavit.
79․Ms Woodward stated that she delivered those documents to the known address on 11 June 2024 at 2.41pm. However, Ms Woodward stated that as she did not receive a response at the front door, she placed the documents into sealed, personally addressed envelopes (marked private and confidential), and left the envelopes at the front door. A photograph of the placement of the envelopes was included in the first service affidavits.
80․The plaintiff’s solicitor stated in his affidavit that, in response to the notification of attempted service, the plaintiff’s solicitor attempted to call the defendants by telephoning the second defendant’s phone number three times at approximately 3.01pm, 4.04pm, 4.08pm, and three times on or about 4.42pm of 11 June 2024 (using three different numbers) to confirm if they had received the documents. On each occasion, the plaintiff’s solicitor did not manage to speak with the defendants, and there was apparently no option to leave a voice message.[105] File notes of these calls were included in the July Evelyn affidavit.[106] Relevantly, the plaintiff’s solicitor stated in the affidavit that, after the first call using a particular number (at 3.01pm and 4.08pm), the phone line simply was not able to connect as opposed to ringing unanswered for about one minute.[107]
[105] July Evelyn affidavit at [59](a)-(c).
[106] Annexure MJE-6 to the July Evelyn affidavit at 45-6.
[107] July Evelyn affidavit at [59](a)-(c).
81․The plaintiff’s solicitor also stated in the affidavit that he sent an email to the known email with the relevant documents attached on 11 June 2024.[108] A copy of this email was annexed to the July Evelyn affidavit, indicating that the email was sent at 3.00pm on 11 June 2024.[109]
[108] July Evelyn affidavit at [47].
[109] Annexure MJE-4 to the July Evelyn affidavit at 27.
82․The plaintiff’s solicitor requested both a “delivery” receipt and a “read” receipt for this email. The former was received, indicating the email was successfully delivered. However, the plaintiff’s solicitor did not receive the latter, which would have confirmed the defendants read the email.[110] The plaintiff’s solicitor noted that the read receipt is a manual prompt which only notifies the sender if the recipient agrees to sending a copy of the read receipt to the sender – if the recipient does not agree then no notification is received, regardless of whether the sender read the email. A copy of the delivery receipt was annexed to the July Evelyn affidavit, timestamped 3.04pm on 11 June 2024.[111]
[110] July Evelyn affidavit at [47]-[49].
[111] Annexure MJE-4 to the July Evelyn affidavit at 28
83․The plaintiff’s solicitor also stated in his July affidavit that he also arranged for the relevant documents to be sent to the known address by express post.[112] The Australia Post tracking number for the documents, annexed to the July Evelyn affidavit, indicated that delivery was successful, and that it had been left at a “safe place” at the known address on 12 June 2024 at 10.18am.[113]
[112] July Evelyn affidavit at [50].
[113] Annexure MJE-5 to the July Evelyn affidavit at 34.
84․On 12 June 2024, the plaintiff’s solicitor again attempted to call the defendants using the second defendant’s phone number at approximately 11.01am to 11.04am. The plaintiff’s solicitor stated in the affidavit that he was again unsuccessful in his attempt to speak with the defendants.[114] When the plaintiff used the three numbers used to attempt to call the defendants on 11 June 2024, the calls failed to connect.[115] The plaintiff’s solicitor noted, however, that a call using a fourth number connected and rang unanswered for about one minute. There was also no option to leave a message.[116]
[114] July Evelyn affidavit at [60](a)-(b). See also Annexure MJE-6 to the July Evelyn affidavit at 48.
[115] July Evelyn affidavit at [60](a).
[116] July Evelyn affidavit at [60](b).
85․The plaintiff’s solicitor stated in his July affidavit that he also arranged for a letter to be sent to the known email and by express post on 12 June 2024. The letter enclosed a copy of the June interlocutory orders, and indicated to the defendants that the plaintiff’s solicitor had inferred that the defendants had been blocking the firm’s phone numbers, given that they had received the relevant documents and knew that the plaintiff’s solicitors were attempting to serve them.[117] In his July affidavit, the plaintiff’s solicitor expressed his view that the defendants would have found it easy to identify calls made from his office, as all the numbers from the firm’s office begin with similar numbers.[118]
[117] July Evelyn affidavit at [61](a)l Annexure MJE- 7 to the July Evelyn affidavit at 57.
[118] July Evelyn affidavit at [66].
86․The letter also included the extract of the warning by her Honour McWilliam AsJ (as her Honour then was) regarding the importance of not avoiding service, and indicated that if the defendants failed to appear in the directions hearing on 17 June 2024 the plaintiff would make an application for informal or substituted service.[119]
[119] Annexure MJE-7 to the July Evelyn affidavit at 55-7.
87․The July Evelyn affidavit detailed further failed attempts to contact the defendants via telephone on 13 June 2024 and 14 June 2024.[120] Similarly to the previous occasions, an attempt to call using the numbers that had been used before by the plaintiff’s solicitor to contact the defendants did not connect at all.[121] However, the plaintiff’s solicitor stated that calls did connect (albeit unanswered) when the plaintiff’s solicitor used new numbers.[122]
[120] July Evelyn affidavit at [62]-[63]; Annexure MJE-6 to the July Evelyn affidavit at 49-50.
[121] July Evelyn affidavit at [62](a)-(b), [63](a).
[122] July Evelyn affidavit at [62](c), [62](b)
88․I also note that there appears to be another attempt at personal service made by a process server on 13 June 2024. Similarly to the first affidavits of service, in the second affidavits of service Mr Woodward stated that he delivered the same documents on 14 June 2024 at 2.00pm to the known address. Mr Woodward also stated that he attended the known address first on 13 June 2024 at 2:00pm. Mr Woodward received no response on both occasions, and accordingly, left two packets of documents in an envelope at the front door on 13 June 2024 and 14 June 2024.
89․In essence, Mr Woodward proceeded to take similar steps as Ms Woodward had undertaken, placing the documents in an envelope and leaving the documents at the front door. Photographs taken by Mr Woodward during the time of service were annexed to the second affidavits of service.
90․On 19 June 2024, the plaintiff made the plaintiff’s solicitor aware of the telephone number for the first defendant and another phone number for the second defendant, being the home phone number for the known address. Attempts to call the defendants through these numbers using different phone numbers at around 10am and 6.29pm on 20 June 2024 were unsuccessful.[123] In relation to attempts to call the phone number for the known address, the calls were simply unable to connect even when using a fresh number.[124] The plaintiff’s solicitor gave evidence that he received an automated voice message advising that the telephone handset was switched off (or unavailable) when calling the first defendant’s phone number.[125]
[123] July Evelyn affidavit at [65], Annexure MJE-6 to the July Evelyn affidavit at 51-2.
[124] July Evelyn affidavit at [65](a), (c), (d)
[125] July Evelyn affidavit at [65](b).
91․The plaintiff’s solicitor stated in his July affidavit that he was of the opinion that attempts to contact the defendants via telephone were futile, as he had inferred that the defendants were monitoring calls made from his office and then taking steps to block the telephone numbers.[126]
[126] July Evelyn affidavit at [67].
92․Despite this, the July Evelyn affidavit also detailed further steps taken by the plaintiff’s solicitor to identify other means to bring the relevant documents in this matter to the defendants’ attention on 25 June 2024. This included social media searches and a personal name search in the ASIC register.[127]
[127] July Evelyn affidavit at [69]-[71].
93․The plaintiff’s solicitor managed to identify an alternative email through a parliamentary submission apparently made by the second defendant,[128] and was also informed of the email included in the Amway account on 15 July 2024 by the plaintiff.[129] The plaintiff’s solicitor stated that he sent emails including the relevant documents to these addresses on 12 July 2024 and 15 July 2024 respectively but received no response.[130]
[128] July Evelyn affidavit at [73]-[74]; Annexure MJE-8 to the July Evelyn affidavit at 66-7
[129] July Evelyn affidavit at [75].
[130] See July Evelyn affidavit at [77]-[79]; Annexure MJE 9 to the July Evelyn affidavit at 69-72.
94․The final attempt detailed by the July Evelyn affidavit was an encounter after a directions list hearing for the SC 74 and 86 of 2023 proceedings on 5 July 2024. The plaintiff’s solicitor stated that, after the listing was adjourned at approximately 10.25am, the plaintiff’s solicitor approached the defendants to speak about the June interlocutory orders.[131] The plaintiff’s solicitor gave evidence of the following events that took place during this approach:
[131] July Evelyn affidavit at [80].
(a)The second defendant begun shouting words to the effect of “don’t speak to us, don’t talk to us” before the plaintiff’s solicitor could finish his initial sentence.[132]
[132] July Evelyn affidavit at [80].
(b)The defendants turned to two Court staff who were present at the time and began shouting at them, “speaking very quickly and talking over the top” of each other. The plaintiff’s solicitor stated in his affidavit that it was difficult to remember what the defendants were saying, but that, among other things, either the first or second defendant shouted words requesting that the staff make the plaintiff’s solicitor “go away” or “stop talking”, that the plaintiff’s solicitor was hostile and harassing them, and that the defendants did not want to speak to him.[133]
[133] July Evelyn affidavit at [81]
(c)The defendants continued to repeat words to this effect for “perhaps twenty to thirty seconds” after the plaintiff’s solicitor stopped speaking. After this period, the defendants continued to say words to this effect, but “not quite as loudly” as before.[134]
[134] July Evelyn affidavit at [82].
(d)As soon as the plaintiff’s solicitor began to broach the subject of the June interlocutory orders, the defendants raised their voices and started shouting and speaking rapidly again.[135]
[135] July Evelyn affidavit at [83].
(e)The plaintiff’s solicitor specifically recalled that the first defendant shouted words to the effect that she was “in tears and [the plaintiff’s solicitor] doesn’t care” and that there were orders made in October that the plaintiff’s solicitor was evading. The plaintiff’s solicitor understood these to be a reference to orders made by the FCFCOA involving Mr Ovari.[136]
[136] July Evelyn affidavit at [85].
(f)The plaintiff’s solicitor also specifically recalled the second defendant saying, “He’s still talking, but I can’t hear him”.
95․The plaintiff’s solicitor stated in his July affidavit that he formed an impression that the defendants were deliberately raising their voices and shouting in an attempt to prevent themselves from being able to hear the plaintiff’s solicitor’s words.[137] The plaintiff’s solicitor cited the loud and fast way in which the defendants were speaking, the way that the defendants lowered their voices after the plaintiff’s solicitor had been silent for some time and then raised their voices again after the plaintiff’s solicitor begun speaking again, and the comment made by the second defendant described above at [94(f)]. The plaintiff’s solicitor left the room at this point without saying anything further to the defendants.
[137] July Evelyn affidavit at [87].
96․For context and completeness, I also note that in his August affidavit, the plaintiff’s solicitor detailed steps taken to serve the defendants with the current application, the July affidavits, as well as the affidavits of service. The plaintiff’s solicitor stated that he sent the documents to the known email address on 24 July 2024, split across 4 different emails given the size of the files.[138] The defendants also sent the documents relating to the current application via express post on the same day to the known address, with the package being recorded as delivered on 25 July 2024.[139]
[138] August Evelyn affidavit at [4]-[7].
[139] August Evelyn affidavit at [8]-[13].
Consideration
The defendants did not formally appear in SC 192 of 2024
97․I repeat what I stated at the outset of this judgment:
(a)Two matters, SC 192 of 2024 and ES 1 of 2024 were both listed before me on 2 August 2024 and 9 August 2024.
(b)The first and second defendant in SC 192 of 2024 underlined that they appeared in court only in relation to ES 1 of 2024.
(c)Therefore, there was no formal appearance by the defendants in SC 192 of 2024, the matter which is the subject of this judgment.
(d)Nevertheless, the first defendant and the second defendant made a number of statements informally in the courtroom in relation to SC 192 of 2024 (the subject of this judgment) despite their non-appearance in SC 192 of 2024.
98․Consequently, the defendants did not file any affidavit evidence or written submissions. The first and second defendants were both present self-represented for the other matter, ES 1 of 2024.
99․Thus (in a somewhat contradictory stance), the defendants made informal oral submissions at the hearing, albeit that the defendants were clear that they were formally not present for SC 192 of 2024.
100․In summary, the defendants, while not formally appearing made informal statements (a somewhat unusual forensic circumstance) expressing an unawareness of the current application.[140] The defendants made reference to what McWilliam AsJ (as her Honour then was) had stated in relation to service of documents in a courtroom, as referred to earlier at [69].
[140] Transcript, 2 August at 3 [37]-[42], 4.
101․As to service to the known address, the second defendant made various statements (informally) to indicate that the known address was not a suitable place for documents to be left to effect service. Such statements included that cars had been stolen and blown up on the street, that there were wild parties that took place on the street, that a neighbour had had their wallet stolen,[141] and also that both the first and second defendant had been overseas and so not present at the known address for relevant periods.[142] Statements to this effect were made both before and after the orders for substituted service were made on 9 August 2024.
[141] Transcript, 9 August at14 [27]-[29].
[142] Transcript, 9 August at 8 [33]-[35].
102․Similarly, as to service to the known email address, the second defendant made statements (informally) to indicate that the service of the documents to this email address would not necessarily bring the documents to the attention of the defendants. In this regard, the second defendant noted the FCFCOA proceedings, in which the first defendant’s failure to receive an email from the court resulted in him paying a substantial fine.[143]
[143] Transcript, 9 August at 10 [29]-[31]. Here, the second defendant noted that “these things are happening in the digital world, I suppose, cyber screening”.
Submissions of the plaintiff
103․The plaintiff filed written submissions in advance of the 9 August 2024 hearing.[144] At the hearing, counsel for the plaintiff largely relied on the written submissions.[145]
[144] Submissions were prepared by the plaintiff’s solicitors and settled by counsel for the plaintiff.
[145] Transcript, 9 August at 6 [11]-[12].
Informal service (r 6461)
104․In the current application in proceeding, the plaintiff outlined the grounds for seeking orders in relation to informal service.[146] In my view, the substance of these grounds is largely covered by my discussion of the July Evelyn affidavit earlier in this judgment at [76]. The application relevantly highlighted:
[146] Application in proceeding at 2-3.
(a)The plaintiff having attempted to effect personal service on the defendants on 11 June 2024, 13 June 2024, and 14 June 2024 at the known address.
(b)The plaintiff having caused copies of the relevant documents to be left in a prominent position at the known address on 11 June 2024, 13 June 2024, and 14 June 2024.
(c)The plaintiff having caused a copy of the relevant documents to be sent to the known email address on 11 June 2024. Similarly, the plaintiff having also caused a copy of the documents to be sent via express post to the known address on 11 June 2024 and 24 July 2024.[147]
[147] Application in proceeding at [5]-[6].
(d)Although the plaintiff had previously successfully contacted the defendants through their telephone number, commencing on and from 11 June 2024 the plaintiff’s solicitor’s telephone numbers have seemingly been blocked.[148]
[148] Application in proceeding at [8].
105․The plaintiff submitted that the affidavits of the plaintiff’s solicitor outlined a “long and winding history of difficulties” communicating with the defendants.[149] I agree that overall the affidavits were very detailed as to all the attempts that have been made to serve the defendants.[150]
[149] PWS at [6].
[150] Transcript, 2 August at 23.
106․The plaintiff submitted that the defendants have regularly denied having received correspondence at their own nominated address for service, and are intentionally refusing to be informed in relation to proceedings to which they are a party.[151]
[151] PWS at [6].
107․In response to claims of a lack of awareness on the part of the defendants, the plaintiff submitted that this would require this Court to be satisfied of the following (as detailed in the July and August affidavits of the plaintiff’s solicitor):
(a)The defendant did not see or collect the two packets of documents left at and placed prominently at the front door at the known address by Ms Woodward on 11 June 2024.
(b)The defendant did not receive or read the copies of documents sent by email to the known email on 11 June 2024.
(c)Despite confirmation of delivery Australia Post, the defendants did not receive the copy of documents sent by express post on 11 June 2024.
(d)The defendants did not receive an email sent to the known email on 12 June 2024.
(e)The defendants did not receive a letter sent by express post on 12 June 2024 to the known address.
(f)The defendants did not see or collect two packets of documents left at and placed prominently at the front door on 13 June 2024 and 14 June 2024 by Mr Woodward.
(g)An email sent to another email address of the second defendant on 12 July 2024 was not received or read.
(h)An email sent to an email address associated with the active Amway account was not received or read.
(i)The defendants did not receive four emails sent on 24 July 2024 serving the application and supporting affidavits on 24 July 2024.
(j)The defendants did not receive a copy of the current application and supporting affidavits that were posted to the known address, despite Australia Post verifying delivery on 25 July 2024.[152]
[152] PWS at [7].
108․The plaintiff submitted, and I am satisfied, on all of the evidence before me, that the defendants were aware of the proceedings. On the evidence, I have accepted the following submissions of the plaintiff outlined below.
109․First, I accept the seminal submission of the plaintiff, that at all times when service was attempted at the known address and known email, the defendants were the plaintiffs in the SC 74 and 86 of 2023 proceedings, and the same known address and known email were the defendants’ nominated address for service in those proceedings. Consequently, it is clear in my view that the first defendant and the second defendant were aware of the need to monitor the methods of service for important legal correspondence in relation to ongoing legal proceedings.[153]
[153] PWS at [8].
110․Second, while not essential to my decision I accept the submission of the plaintiff that the plaintiff’s solicitor had been able to call the defendants using the telephone numbers nominated for the proceedings since March 2023, in the sense that while the phone was rarely answered, the line did connect. Indeed, the plaintiffs noted that the plaintiff’s solicitor was able to speak with the second defendant on one occasion, referring to the brief call on 7 February 2024.
111․Third, while not essential to my decision, I accept the submission of the plaintiff that beginning on 11 June 2024 and immediately after the attempted service at the known address and known email, the plaintiff’s solicitor was only able to call telephone numbers of the defendant once from any phone number. That is, any of the several telephone numbers used by the plaintiff were unable to make a connection to the defendants’ telephone number on subsequent attempts.[154]
[154] PWS at [8](c).
112․I am therefore satisfied that the relevant documents came to the notice of the first and second defendants as:
(a)The documents were delivered to the known address, left at a prominent place, at the known address and were served via the known email on 11 June 2024.
(b)The first and second defendants themselves nominated the known address and email as addresses to accept service.[155]
[155] Application in proceeding at [9](a)-(d).
113․At the hearing, counsel for the plaintiff ultimately submitted, and I accept on the evidence, that, the documents have come to the notice of the defendants on or before a particular day: r 6461(1)(a) and (b).[156] Earlier in the judgment I set out the relevant law at [50]-[54].
[156] Transcript, 9 August at 6 [16].
114․I am satisfied that the relevant legal test is met on the evidence before me. The first and second defendants were both aware of the proceedings and were so aware from 11 June 2024.
Substituted service (r 6460)
115․In relation to the order for substituted service, the plaintiff submitted that the current application was prompted in circumstances where the plaintiff had reasonable grounds to believe that, after 11 June 2024:[157]
[157] PWS at [10].
(a)To the plaintiff’s knowledge, the defendants have not yet surrendered or destroyed the incorrect death certificate and copies of it in accordance with orders 2, 4, and 5 of the June interlocutory orders.
(b)The first defendant has produced the incorrect death certificate to Amway, failing to disclose that the certificate had been cancelled,[158] contrary to order 3 of the June interlocutory orders. This was also noted in the July affidavit.
[158] See also July plaintiff affidavit at [14]-[15], [20].
(c)As noted in the July affidavit, the first defendant has caused the deceased to be “resigned” from Amway by representing herself to be the spouse of the deceased at the date of his death, contravening order 6(a).[159]
[159] July plaintiff affidavit at [15].
(d)The first defendant has produced the revoked will to Amway, representing it to be the valid last will of the deceased, which would constitute a breach of order 6(f).[160]
[160] PWS at [10](d).
116․I accept on the evidence presented before me that there are reasonable grounds to believe the defendants will continue to disregard orders, absent any action being taken to place the defendants in a position where they are unable to deny the existence of the proceedings and the orders made.
117․This Court is satisfied that it is impracticable for any document to be personally served on the defendants as the first and second defendants are both evading service: r 6460(3)(a).[161]
[161] Application in proceeding at [10].
118․Further, the Court is satisfied that the alternative method for service is reasonably likely to bring the document to the attention of the first and second defendants: r 6460(3)(b).
Conclusion
119․For the above reasons, I am satisfied that the orders sought by the plaintiff in relation to informal service and substituted service should be granted and were granted in this case.
120․This leaves two outstanding matters. First, in written submissions, the plaintiff also sought orders that both the plaintiff’s originating application and the current application in proceeding be amended under r 502 of the CPR to name the plaintiff as an executor for the estate of Mr Ovari. This submission was not pressed at the hearing and was not one of the orders sought in the current application.
121․The other issue is costs. In written submissions, the plaintiff sought that the defendants pay the costs of the whole of the proceedings on an indemnity basis.[162]
[162] PWS at [14].
122․On 9 August 2024, I granted leave for both parties to file written submissions on costs after the publication of my reasons.
Orders
123․Accordingly, the following orders were made on 9 August 2024:
(1)Under Rule 6461 of the Court Procedures Rules 2006 that the first defendant and the second defendant are taken to have been served with the following documents in relation to this proceeding on 11 June 2024:
(a)The plaintiff’s Originating Application dated 7 June 2024;
(b)Affidavit of Attila Francis Ovari affirmed 7 June 2024;
(c)Affidavit of Mitchell John Evelyn affirmed 7 June 2024; and
(d)Sealed orders of Loukas-Karlsson J dated 11 June 2024.
(2)Under Rule 6460, any requirement for personal service on the first defendant or second defendant in relation to any document which is required to be personally served under Part 2.18 of the Court Procedures Rules 2006 is dispensed with.
(3)Under Rule 6460, that any document served on the first defendant or second defendant in this proceeding be taken to have been effectively served if that document has been:
(a)Sent by email to the email address [redacted]; or
(b)Delivered to [redacted].
(4)Both parties are granted leave to file written submissions on costs after the publication of reasons.
| I certify that the preceding one hundred and twenty-three [123] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: Date: 16 July 2025 |
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