Rayney v Reynolds [No 2] - [2016] WASC 254

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RAYNEY -v- REYNOLDS [No 2] [2016] WASC 254

CORAM: CHANEY J

HEARD: ON THE PAPERS

DELIVERED : 16 AUGUST 2016

FILE NO/S: CIV 1827 of 2015

BETWEEN: LLOYD PATRICK RAYNEY
Plaintiff
AND
MARK REYNOLDS
Defendant

Catchwords:

Practice and procedure - Substituted service

Legislation:

Rules of the Supreme Court 1971 (WA), O 72 r 4

Result:

Orders for substituted service made

Category: B

Representation:

Counsel:

Plaintiff: No appearance
Defendant: No appearance

Solicitors:

Plaintiff: In person
Defendant: Not applicable

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

Rayney v Reynolds [2016] WASC 219

CHANEY J: On 14 July 2016, I made orders extending the validity of the writ in this action until Monday 15 August 2016: see Rayney v Reynolds [2016] WASC 219.
Since that time, the plaintiff has, through process servers, attempted to serve the writ on the defendant. Those efforts have proved unsuccessful and, by ex parte motion filed on 10 August 2016, the plaintiff applied pursuant to O 72 r 4 of the Rules of the Supreme Court 1971 (WA) for orders for substituted service. That ex parte motion was dealt with on the papers. On reading the affidavits of Nicola Emma Randall affirmed 10 August 2016 and Andrew Stephen sworn 10 August 2016, I was satisfied that the orders sought were appropriate, and made the orders accordingly. These are my reasons for so doing.

The orders sought

The orders sought in the ex parte motion were as follows:
1.Personal service of the following documents be dispensed with:
1.1the Writ of Summons filed 2 June 2015 and extended to Monday 15 August 2015;
1.2the extracted orders of the Honourable Justice Chaney made 14 July 2016; and
1.3the reasons for decision in Rayney v Reynolds [2016] WASC 219.
2.Service upon the defendant of the documents referred to in orders 1.1 ‑ 1.3 be effected by:
2.1mailing true copies of these documents to the defendant by express post, care of the defendant's place of work being the offices of the Forensic Division of the Western Australian Police Force which are located at 2 Clayton Street, Midland and 32 Spring Street, Midland; and
2.2by hand delivery of true copies to both of these addresses.
3.Service in accordance with order 2 of these Orders be deemed good and sufficient service of the documents referred to in orders 1.1 ‑ 1.3 above on the defendant.
4.The costs of the application be reserved.
The defendant is a senior investigating forensic officer with the Western Australian Police Service. Information available to the plaintiff suggests that his usual place of work is at either 32 Spring Street, Midland or 2 Clayton Street, Midland, or at both.
Mr Stephen is a process server. His affidavit reveals that he was instructed on 19 July 2016 to serve the writ of summons and the orders extending the validity of the writ on the defendant. He undertook inquiries to ascertain the residential address of the defendant by a search of Landgate records. That search identified that the defendant is the joint registered proprietor of a residential property in Manning (Manning property). Mr Stephen attended the Manning property on two occasions on 21 July 2016. The premises were secured by a front fence with a locked gate and an intercom system for communication purposes. Mr Stephen observed a female person on the premises but no male person.
Mr Stephen attended the Manning property again on 1 August 2016 when he observed a male person inside the house. The male person was not the defendant. Mr Stephen used the intercom to speak to a female occupant of the premises who advised him that the defendant had not resided at the Manning property for four and a half years. She provided a mobile number for the defendant which was the same mobile number as had been provided to Mr Stephen by the solicitors who instructed him to serve the documents.
Mr Stephen undertook a further search through the offices of the Australian Electoral Commission and ascertained that the address for the defendant was suppressed. On 3, 4 and 6 August 2016, Mr Stephen attempted to telephone the defendant on his mobile number, and on each occasion left a message requesting the defendant to contact him urgently.
On 8 August 2016, Mr Stephen attended at the Midland Police Station - Forensic Division, at 32 Spring Street, Midland, where he had been instructed the defendant worked. He attempted to telephone the defendant on his work landline number but the call was directed to a switchboard. After Mr Stephen explained the purpose of his call, he was placed on hold by the operator. The operator subsequently advised Mr Stephen that there was no answer on the defendant's landline. Mr Stephen requested the operator attempt to locate the defendant to take his call, but after about 20 seconds the operator returned and advised Mr Stephen that the defendant could not be located and that he should try again the next day. Mr Stephen then left a further telephone message on the defendant's mobile number.
On 9 August 2016, Mr Stephen telephoned the forensic division of the West Australian Police Service and was again told by the operator that the defendant was not in attendance at the premises that day. The operator told Mr Stephen that the defendant was 'unwell' and 'had not been in the office for two days' and that Mr Stephen should make enquiries the following day as the defendant was expected the following day.
On 10 August 2016, at 9.30 am, Mr Stephen attended at 32 Spring Street, Midland. Those premises are secure with a guard in attendance. Mr Stephen requested the guard to contact the defendant and to request that the defendant make himself available immediately to Mr Stephen. The guard made a telephone call, which Mr Stephen presumed to be to the defendant. He did not appear to get a response. The guard then went behind closed doors and after a couple of minutes reappeared and advised Mr Stephen that the defendant could not be located. Mr Stephen indicated that he would wait until the defendant made himself available. The guard went back to the premises and after several minutes reappeared and reaffirmed the defendant could not be located, but provided Mr Stephen with the defendant's direct telephone number. Mr Stephen then telephoned the defendant on that direct line. A woman answered the call and when Mr Stephen asked to speak to the defendant, the woman advised that the defendant was not in attendance at the office as he had been unwell for a couple of days, and his return date was unknown. She said that she would have the defendant telephone Mr Stephen on his return.
Mr Stephen returned to his vehicle and telephoned the defendant's mobile number. He again left a message identifying himself and requesting the defendant to contact him urgently so that arrangements for service of the documents could be made.
As at 10 August 2016 when Mr Stephen made his affidavit, he had received no contact from the defendant.
Ms Randall is a solicitor in the firm which from time to time assists the plaintiff with the conduct of this action. She annexed to her affidavit an email chain between herself and a process server in June and July 2014 which indicated that service of the concerns notice which preceded the present action was effected on the defendant at a building at 2 Clayton Street, Midland, which appears to be a location at which the forensic division of the police also carries out work. The affidavit also annexed a copy of the affidavit of Cheryl Lorraine Harrison dated 11 July 2016 which was filed in relation to the application for extension of the validity of the writ. That affidavit deposed to the unsuccessful attempts to serve the defendant in June 2016. Ms Randall's affidavit also attached a copy of the affidavit of the plaintiff which outlined the various attempts that had been made in June 2016 to serve the writ on the defendant through his former solicitors. It was the affidavits of Ms Harrison and the plaintiff which caused me to accept, in the context of the application for an extension of the validity of the writ, that there was evidence which suggested that the defendant was intentionally avoiding service.
Finally, Ms Randall's affidavit attached some copies of articles published in the media following the hearing as to the extension of the validity of the writ. That publicity reinforces the very clear inference that the defendant is aware of the attempts to serve him with the writ in these proceedings, but has chosen not to cooperate with attempts at service.

Should an order be made?

Order 72 r 4 permits the court to order substituted service where it appears that personal service is impracticable. I am satisfied that, by reason of the plaintiff's lack of knowledge as to the defendant's place of residence, the fact that the defendant's place of work is not accessible to the public, and the fact that repeated efforts to serve the defendant have been unsuccessful largely because of the defendant's failure to cooperate with service, personal service is impracticable.
It is proposed that the service be effected by post and by hand delivery of the writ to the defendant's places of work. The responses obtained by the process servers when they have made contact with the defendant's place of work all tend to confirm that the defendant works at one or other of those locations. I am satisfied, therefore, that service by mail, and by hand delivery, to the two addresses identified is likely to bring the writ to the attention of the defendant. I am satisfied that the attempts which have been made to serve the defendant, both before and after the extension of the validity of the writ, have been reasonable and adequate.
It was for those reasons that I made the orders sought on the ex parte motion.