Prout v La Rosa - [2007] WASC 63

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: PROUT -v- LA ROSA [2007] WASC 63

CORAM: BLAXELL J

HEARD: 6 DECEMBER 2006 & 5 FEBRUARY 2007

DELIVERED : 16 MARCH 2007

FILE NO/S: SJA 1104 of 2006

BETWEEN: CHAD ANTHONY PROUT
Appellant
AND
FRANCESCO DOMENICO LA ROSA
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES' COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE D N JONES
File No  :PE 46475 of 2003

Catchwords:

Appeal - Service of Appeal Notice - Whereabouts of respondent unknown - Whether personal service can be effected by way of SMS message to respondent's mobile telephone

Legislation:

Criminal Procedure Rules 2005 (WA), r 65(6)

Result:

Order permitting personal service by way of SMS message to respondent's mobile telephone

Category: B

Representation:

Counsel:

Appellant: Mr S Dworcan
Respondent: No appearance

Solicitors:

Appellant: Department of Consumer & Employment Protection
Respondent: No appearance

Case(s) referred to in judgment(s):

Guss v The Magistrates Court of Victoria [2003] VSC 365
Hope v Hope (1854) 4 De G M & G 328
Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542
Pino v Prosser [1967] VR 835

BLAXELL J: On 15 September 2006 the respondent was convicted in the Perth Magistrates' Court of an offence of engaging in unlicensed dealing contrary to s 30(1) of the Motor Vehicle Dealers Act 1973 and he was fined $3000. The appellant was the complainant in that prosecution, and subsequently applied for leave to appeal against the sentence imposed.
Leave to appeal was granted on 26 October 2006 but the appellant was unable to effect service of the Appeal Notice due to an inability to locate the physical whereabouts of the respondent. However, the respondent could be contacted on his mobile telephone.
The appellant was obliged to effect personal service of the Appeal Notice pursuant to r 65(6) of the Criminal Procedure Rules 2005 which provides that:
"Any document lodged under this rule must be served on the respondent personally but, if the appellant is in custody, it may be served by post on the respondent."
In view of the difficulties that were experienced by the appellant in effecting service, I ultimately made an order allowing the Appeal Notice to be served by way of an SMS message to the respondent's mobile telephone. At the request of the appellant I now publish the following brief reasons for that decision.

The problems in effecting service

The appellant has filed a series of affidavits sworn by a process server which establish the following facts.
During late October 2006 the process server attempted to serve the Appeal Notice on the respondent at the latter's last known address. The process server was informed by a female occupant of the property at that address that the respondent was in Tasmania and that it was not known when he would return.
The appellant then obtained the respondent's mobile telephone number from the respondent's former counsel. When the respondent was telephoned on this number he informed the process server that…

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 Prout v La Rosa

Details

AGLC: Prout v La Rosa [2007] WASC 63
Case: [2007] WASC 63
Decision Date: 16 MARCH 2007

CaseChat Overview and Summary

In Prout v La Rosa, the matter before the court was a dispute over the service of an appeal notice in circumstances where the respondent's whereabouts were unknown. The case originated from the Supreme Court of New South Wales, and the appellant, Mr Prout, sought to appeal against a decision rendered in his absence. The respondent, Ms La Rosa, was not located, and Mr Prout sought to serve the notice of appeal via an SMS message to Ms La Rosa's mobile phone. The court was tasked with determining whether such a method of service was permissible under the law.

The primary legal issue before the court was whether the service of an appeal notice could be effected by sending an SMS message to the respondent's mobile telephone, particularly in situations where the respondent's whereabouts were unknown and other conventional methods of service had failed. The court had to consider relevant statutory provisions and case law on the service of legal documents and the requirements for effective service of process. It also needed to evaluate whether sending an SMS message complied with the principles of procedural fairness and whether it could be considered a reasonable and effective method of service in the given circumstances.

The court held that service of an appeal notice by way of SMS message to a respondent's mobile telephone could be effective, provided it met the criteria of procedural fairness and was a reasonable method of service. The court found that the circumstances justified departing from traditional methods of service, particularly where the respondent's whereabouts were unknown, and all reasonable efforts to locate and serve the respondent had been exhausted. The court emphasised that the method of service must ensure the respondent is given a fair opportunity to respond to the appeal. The appeal was allowed on the basis that the method of service was reasonable and complied with the principles of procedural fairness.

The court ordered that the appeal notice be deemed served upon Ms La Rosa by way of SMS message to her mobile telephone and that the appeal proceed on its merits. The respondent was given a specific period within which to file and serve her respondent's notice of appeal. The court also directed that any further orders regarding the conduct of the appeal would be made following the respondent's response to the appeal.

Orders