Re Pepper Finance Corporation Ltd
[2023] WASC 430
•9 NOVEMBER 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: RE PEPPER FINANCE CORPORATION LTD; EX PARTE PEPPER FINANCE CORPORATION LTD [2023] WASC 430
CORAM: HOWARD J
HEARD: 26 OCTOBER 2023
DELIVERED : 9 NOVEMBER 2023
FILE NO/S: CIV 1529 of 2023
MATTER: IN THE MATTER OF PEPPER FINANCE CORPORATION LTD
EX PARTE
PEPPER FINANCE CORPORATION LTD
Plaintiff
Catchwords:
Practice and procedure - Ex parte application for leave to serve writ outside Australia - Whether cause of action is within head of jurisdiction for leave to serve out under O 10 r 1(1) - Whether requirements satisfied - Whether discretion to grant leave enlivened - Impact of O 10 r 10 on the plaintiff's application - Substituted service - Whether plaintiff can rely on O 72 r 4 to serve the defendants by means alternative to personal service
Legislation:
National Consumer Credit Protection Regulations 2010 (Cth)
Rules of the Supreme Court 1957 (Vic)
Result:
Application dismissed with leave to apply
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr B C Smith |
Solicitors:
| Plaintiff | : | Dentons Australia |
Cases referred to in decision:
ANZ Grindlays Bank v Fattah (1991) 4 WAR 296
Argonaut Partners Pty Ltd v Abyssinian Metals Ltd [2023] WASC 278
ASIC v Sweeney [No 2] (2001) 38 ASCR 743; [2001] NSWFC 477
Australian Insurance Brokers Ltd v Hudig Langeveldt Pty Ltd [No 2] (1991) 7 WAR 343
Bombardier Inc v Avwest Aircraft Pty Ltd [2020] WASCA 2
Carter Holt Harvey Woodproducts Australia Pty Ltd v David [2015] VSC 393
Centurion Trust Company Pty Ltd v Director of Public Prosecutions (WA) [2008] WASCA 6
Commissioner of Taxation v Ma (1999) 92 FCR 569
Crawley Investments Pty Ltd v Elman [2014] WASC 233
Kent v Lechmere Financial Corporation [2002] WASC 75
Laurie v Carroll (1958) 98 CLR 310
Lipohar v R (1999) 200 CLR 485
Micon Mining and Construction Products GMBH & Co KG v MacMahon Mining Services Pty Ltd [2022] WASCA 56
Mondial Trading Pty Ltd v Interocean Marine Transport Inc (1985) 65 ALR 155
Obeid v R (2015) 91 NSWLR 226
PT Garuda Indonesia Ltd v ACCC (2012) 247 CLR 240
The Siskina [1979] AC 210
HOWARD J:
By an ex parte motion dated 26 September 2023 (original motion), the plaintiff financier applied for leave to issue and serve a concurrent writ of summons in circumstances where a regular writ of summons had issued on 19 May 2023 (May 2023 writ).
The original motion sought leave to serve that concurrent writ on the defendants in the United Kingdom on the ground that the 'contract in issue' was made in Western Australia.
The original motion also sought some further orders which will be returned to below.
The May 2023 writ was endorsed with a statement of claim which, in short, alleges that:
1.the defendants entered into a Loan Agreement in March 2022 with the plaintiff financier;
2.the loan was secured against Property in Sunbury, in the State of Victoria, by a Mortgage; and
3.the defendants were in default of the Loan Agreement and the Mortgage in February 2023.
Prayers 1 and 2 of the statement of claim claimed:
1.The amount owing pursuant to the Loan Agreement and the Mortgage as at the date of Judgment; and
2.Possession of the Property.
The plaintiff relied on the affidavits of:
1.Barry Talbot made 18 July 2023; Mr Talbot is an officer of the plaintiff; and
2.Emily Ka-yan Wai made 19 July 2023; Ms Wai is a solicitor in the plaintiff's firm of solicitors.
The evidence relied on by the plaintiff (which has not been supplemented) is to the following effect:
1.the plaintiff's cause of action was verified by Mr Talbot as a good cause of action based on certain deposed-to matters, which do not need to be recited here;
2.the last known address the plaintiff had for the defendants was a residential address in Doubleview in Western Australia;
3.a local process server had unsuccessfully attempted to serve the defendants at that Doubleview residential address;
4.the process server had then called and texted the first-named defendant's (Mr Salvarinov) Australian mobile number, and had called the last known Australian mobile number of the second-named defendant (Mr Hutchison);
5.the process server received a call from a UK mobile number from someone identifying himself as Mr Salvarinov who said (presumably words to the effect of) that he was currently in the UK and may be in England for a while and that it was okay to use the Western Australian residential address as a postal address as someone was picking up the mail from that address, albeit that no-one was living at the address;
6.a Google search revealed that the defendants are officers of an entity known as Streamlined Communications and the website provided a London address for that entity; and
7.a Linkedin profile of Mr Hutchison showed that he had nominated 'United Kingdom' in his profile page, assumedly as some sort of a location.
Before the first scheduled hearing, my Chambers raised a number of matters with the plaintiff's solicitors.
As a result, the originally scheduled hearing was adjourned. On 24 October 2023, the plaintiff emailed my Chambers a minute of amended ex parte motion (amended motion).
The amended motion, by its order 1, sought:
The Plaintiff have leave to issue and serve a concurrent Writ of Summons on the Defendants in the United Kingdom on the grounds that the contract in issue was made in Western Australia pursuant to RSC O 10 r 1(1)(e). (italics showing the amendment)
The matter came before me on 26 October 2023.
At the hearing I was told that the 'contract in issue' was the Loan Agreement and Mortgage.
The plaintiff referred the Court to regs 36(3) and (4) of the National Consumer Credit Protection Regulations 2010 (Cth) (Credit Regulations) to explain its filing the May 2023 writ in this Court. They provide relevantly:
(3)Subject to subregulation (4), a court proceeding must be brought in a court of the State or Territory where the debtor, mortgagor … ordinarily resides, if the court proceeding:
(a)is in relation to:
(i)a credit contract; or
…
(iii)a mortgage; or
…
regulated under the Act; and
(b)involves a debtor, mortgagor …
(4)For subregulation (3), if it is not known where the debtor, mortgagor … ordinarily resides, the court proceeding must be brought in a court of the State or Territory where the debtor, mortgagor … ordinarily resided at the time the credit contract … mortgage … was made.
I was told at the hearing that the plaintiff's solicitors had attended at the Property in Victoria to make enquiries as to the defendants' whereabouts and contact details. Those enquiries had led them to a leasing agent who informed the solicitors that he would ask the defendants for permission to give their contact details to the plaintiff's solicitors. The plaintiff's solicitors had not yet heard further from the leasing agent.
Following the hearing on 26 October 2023, the plaintiff further amended its amended motion (re-amended motion) so that order 1 sought read:
1.The Plaintiff have leave to issue and serve a concurrent Writ of Summons on the Defendants in the United Kingdom on the grounds that the contract in issue
was made in Western Australiais by its terms or implications governed by the law of Western Australia pursuant to RSC Order 10 r 1(1)(e)(iii). (proposed amendments shown)It seems to me that the questions raised by the plaintiff's motion, amended motion and re-amended motion are:
1.can the plaintiff bring its claim within a head of service out in O 10 r 1(1);
2.where the plaintiff did not seek leave to issue a concurrent writ at the time it caused the May 2023 writ to be issued, can that leave now be granted;
3.what impact does O 10 r 10 have on the plaintiff's application; and
4.can the plaintiff rely on O 72 r 4 to serve the defendants by means alternative to personal service.
Available head to serve out
Service raises the question of this Court's personal jurisdiction over a defendant in the sense of a defendant's amenability to this Court's writ and the geographical reach of that writ.[1] As McLure JA (as she then was and with whom Buss JA agreed) summarised in Centurion Trust Company Pty Ltd v Director of Public Prosecutions (WA) [2008] WASCA 6 [99]:
A court's in personam jurisdiction over a defendant in civil proceedings derives from the fact of service of originating process on the defendant in the jurisdiction or by the invocation of the long arm provisions in O 10 of the Rules. (citations omitted) Thus, in an action in personam the rules as to the legal service of a writ or other originating proceedings define the limits of the court's jurisdiction. (citations omitted).
[1] Lipohar v R (1999) 200 CLR 485 [79] (Gaudron, Gummow & Hayne JJ) as approved in PT Garuda Indonesia Ltd v ACCC (2012) 247 CLR 240 [15] (French CJ, Gummow, Hayne & Crennan JJ); see also Obeid v R (2015) 91 NSWLR 226 [10] (Bathurst CJ, Beazley P & Leeming JA).
It is useful here to state some (trite) foundational principles which apply to this application:
1.the Court's personal jurisdiction over a defendant depends on service being duly effected;
2.generally, service is to be made personally within the Court's jurisdiction (in the sense of its geographical area or its 'law area');[2]
3.service out of the jurisdiction is a purely statutory extension of the Court's personal jurisdiction over defendants;
4.the 'heads of jurisdiction' available for service out are more confined than this Court's subject matter jurisdiction;
5.this Court's power to give leave to serve out is to be exercised narrowly and strictly in accordance with the Rules; and
6.the Court must be positively persuaded to grant leave to serve out of the jurisdiction.[3]
[2] See Lipohar v R (1999) 200 CLR 485 [79].
[3] See O 10 r 4(2) and Bombardier Inc v Avwest Aircraft Pty Ltd [2020] WASCA 2 [17] (Buss P, Beech & Pritchard JJA).
Anderson J in ANZ Grindlays Bank v Fattah (1991) 4 WAR 296 at 302 l 20 approved of the following statement from Bridge LJ in The Siskina [1979] AC 210, 240:
The authority of the court to give leave to the service of process beyond the jurisdiction has always been purely a creature of statute. There are good reasons why it should be so. The exercise of this power raises delicate questions of the relationships inter se of sovereign states and of international comity. These are matters with large political implications.[4]
[4] The passage was also adopted by Owen J (as he then was) in Australian Insurance Brokers Ltd v Hudig Langeveldt Pty Ltd [No 2] (1991) 7 WAR 343.
Anderson J then stated at 302 l 31:
For a court to lend its authority to the service of documents on a foreigner abroad is a purported exercise of jurisdiction with respect to that person in a foreign sovereign state; it should not be done, I do not think, unless there is clear authority to do it.
Further, the Court of Appeal in Micon Mining and Construction Products GMBH & Co KG v MacMahon Mining Services Pty Ltd [2022] WASCA 56 (Buss P, Beech and Vaughan JJA) said:[5]
Order 10 r 1 (1) and r 2 RSC must be read with O 10 r 4 RSC and O 5 r 9 RSC must be read with O 10 RSC. Putting aside the exception in O 10 r 1A(2) RSC, the court would not grant leave to issue a writ for service outside of Australia unless the court would also grant leave to serve the writ outside Australia. O 10 r 1(1) and r 2 RSC set out relevant conditions or gateways, one of which must be satisfied … before the discretion to grant leave under O 10 RSC is enlivened. Moreover, the discretion is not at large. In terms of O 10 r 4(2) RSC leave will not be granted unless it sufficiently appears that the case is a proper one for service out of jurisdiction under O 10 RSC. (original emphasis)
[5] Micon Mining and Construction Products v MacMahon Mining Services [67].
The plaintiff's written submissions had sought to bring its claim (on its amended motion) within the head in O 10 r 1(1)(e)(i). That was on the asserted basis that it could be inferred from the Western Australian address the defendants gave to the plaintiff, that the Loan Agreement and Mortgage were 'made in Western Australia'.
At the hearing, however, the plaintiff accepted that there was no evidence, or no sufficient evidence, to allow the drawing of that inference.[6]
[6] Hearing 26 October 2023 ts 3.
With respect, I consider that is so and the plaintiff was correct in this respect.
As noted, the re‑amended motion now seeks leave to serve out under O 10 r 1(e)(iii).
The Loan Agreement was attached to the affidavit of Mr Talbot. (It was silent as to where it was made.) It contains cl 13.4(1) and cl 13.4(2) which provide:
13.4(1)Your loan agreement is wholly governed by the laws of the Australian state or territory in which you reside. If there are two or more borrowers, and each of you reside in the same Australian state or territory when your loan agreement is entered into, your loan agreement is governed by the laws of that state or territory. If there are two or more borrowers who reside in different states or territories, your loan agreement is governed by the laws of the Australian state or territory in which the Lender first provides the loan.
13.4(2)You submit to the jurisdiction of the courts of the Australian state or territory whose laws apply to your loan agreement and the proper jurisdiction of any other court.
The Mortgage was also attached to Mr Talbot's affidavit, and it includes cl 6.6 with the heading Governing Law:
The mortgage is governed by and interpreted in accordance with the law for the time being in force in the jurisdiction where the secured property is located, and the courts of that jurisdiction can deal with any matter relating to the mortgage.
I would be prepared to draw the inference on this application that the address given by the defendant at the time of entry into the contract was their residential address and so the Loan Agreement is governed by the law applicable in Western Australia as being the State of the defendants' residence.
However, the governing law of the Mortgage plainly would be Victoria as the State in which the secured property is located.
The Loan Agreement and the Mortgage are silent as to whether any different provision as to the governing law has been agreed where the Loan Agreement and the Mortgage provide for different governing laws.
The consequence, however, is that the plaintiff has not, in my view, brought itself within O 10 r 1(1)(e)(i) as to either the Loan Agreement or the Mortgage. And it can only, it appears, bring itself within O 10 r 1(1)(e)(iii) in respect of the Loan Agreement.
The consequence is that the Court's personal jurisdiction in respect of the Loan Agreement under O 10 r 1(1)(e)(iii) might be enlivened, but is not in respect of the Mortgage.
As the 'contract in issue' is both the Loan Agreement and the Mortgage I would not make an order in terms of order 1 of the re‑amended motion.
Failure to seek leave to issue
The relevant Rules of this Court derive from the Chancery practice which required prior leave before issue and service.[7]
[7] Micon Mining and Construction Products v MacMahon Mining Services [54]; a short history of the requirement for leave for service out of the jurisdiction was traced by Leeming M, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed), [6.6] Federation Press 2020; see also Crawley Investments Pty Ltd v Elman [2014] WASC 233 [45(1) and (2)] (Edelman J).
The plaintiff says that it would have sought leave to issue a writ to be served out of the jurisdiction under O 5 r 9 (and for it to serve that writ out of the jurisdiction) if it had known that the defendants were not residing at the Western Australian address and appeared to be residing in England.
In Kent v Lechmere Financial Corporation [2002] WASC 75 [5], Pullin J (as he then was) said:
These important provisions [O 5 r 9 and O 10 r 9(1)] are not mere procedural provisions which govern proceedings after they have been properly instituted. These are provisions which confer jurisdiction on the court. … Order 5 r 9 requires an application to be made to the court for leave to issue a writ which is to be served out of the jurisdiction … O 5 r 9 does not permit an order nunc pro tunc.
Pullin J held that the writ issued without leave was defective but not a nullity: Kent v Lechmere [21], where his Honour referred to O 2 r 1.
On that basis, the plaintiff submitted that its failure to seek leave to issue the writ for service out of Australia was an irregularity caused by what it learnt subsequently.
Order 2 in the re‑amended motion (unchanged from the original motion) was sought to remedy that irregularity; it provided:
The failure to seek and obtain leave to issue a Writ of Summons for service outside of Australia prior to the commencement of this Action be treated as an irregularity and be rectified by order 1 herein.
I note that Pullin J in Kent v Lechmere Financial [2002] WASC 75 [23] - [24] assumed, without deciding, that O 2 r 1(2) was wide enough to cure such an irregularity.
In the present circumstances, I do not need to rule on that question. I express no view as to whether that power would be wide enough, but note, in any event, that if it was it would remain a matter of the Court's discretion.[8]
[8] In Kent v Lechmere Financial [24] Pullin J would not have exercised the Court's discretion in the factual circumstances (even if the Court could have otherwise ordered service out of jurisdiction).
Order 10 rule 10
As settled upon at the hearing, orders 3 and 4 in the re‑amended motion (unchanged from the original motion) are sought pursuant to O 10 r 10(1); and, or, O 72 r 4.
Order 3 seeks an order that:
The concurrent Writ of Summons be served on the first-named defendant by sending a copy of the concurrent Writ of Summons and a copy of this order by:
(a)Ordinary pre-paid post addressed [to the Doubleview property];
(b)Email [to a Streamlined Communications email address]; and
(c)Sending a following text (SMS) message [to the last known Australian mobile number].
Similar orders are sought against the second-named defendant by order 4 of the re-amended motion.
Order 10 r 10 provides:
10. Service abroad, general and saving provisions
(1)Subject to rule 9(9), to the following provisions of this rule and to any direction given by the Court as to the manner in which the writ shall be served or brought to the notice of the person, Order 9 rule 1 and Order 72 rule 4 apply in relation to the service of a writ, notwithstanding it is to be served outside Australia.
(2)Nothing in this rule or in any order or direction of the Court made by virtue of it shall authorise or require the doing of anything in a country in which service is to be effected which is contrary to the law of that country.
(3)A writ to be served outside Australia -
(a)need not be served personally on the person required to be served, if it is served on him in accordance with the law of the country in which service is effected; and
(b)need not be served by the plaintiff or his agent if it is served by a method provided for by rule 9.
(4)Rule 9 shall not apply to or render invalid or insufficient any mode of service in any foreign country with which a Convention has been or shall be made which is otherwise valid or sufficient according to the procedure of the Supreme Court and which is not expressly excluded by the Convention.
The plaintiff relied on Argonaut Partners Pty Ltd v Abyssinian Metals Limited [2023] WASC 278 where Lundberg J allowed service by sending the process to a usual email address and delivering hard copies to other physical addresses which were associated with the defendants[9] (those addresses appear to have been in Western Australia).
[9] Argonaut Partners Pty Ltd v Abyssinian Metals Ltd [2023] WASC 278 [32].
In Argonaut Partners it was plain that there was an available head of service out: namely, O 10 r 1(1)(a)(ii).[10]
[10] Argonaut Partners Pty Ltd v Abyssinian Metals Ltd [21]
In that case Lundberg J was satisfied that the defendants sought to be served were probably at an address in South Africa.[11] Lundberg J held that:
1.service pursuant to O 10 r 9 was not an available option as the defendants in question were probably resident in South Africa and that country was excluded from that particular rule;[12]
2.service was not available under O 11A as the Republic of South Africa was not party to the Hague Service Convention;[13]
3.O 10 r 10 provided, ordinarily at least, for the personal service requirement of an originating process outside of Australia;[14] and
4.O 10 r 10 was made subject to any direction given by the Court and that conferred a broad power on the Court to make directions as to the manner in which service is to be effected outside Australia.[15]
[11] Argonaut Partners Pty Ltd v Abyssinian Metals Ltd [20]. Lundberg J was dealing with an originating process under the Supreme Court (Corporations) (WA) Rules 2004 (WA) but approached the matter on the basis that other than the need for pre‑issue leave of an originating process under the Corporations Rules, the other provisions of Order 10 applied to the questions of service in that case.
[12] Argonaut Partners Pty Ltd v Abyssinian Metals Ltd [37].
[13] Argonaut Partners Pty Ltd v Abyssinian Metals Ltd [38].
[14] Argonaut Partners Pty Ltd v Abyssinian Metals Ltd [40].
[15] Argonaut Partners Pty Ltd v Abyssinian Metals Ltd [41].
In all of the circumstances (which included that at least one of the defendants was already well aware of the proceedings), Lundberg J held it was appropriate to allow the manner of non‑personal service sought by the plaintiff.[16]
[16] Argonaut Partners Pty Ltd v Abyssinian Metals Ltd [45].
There is a question of statutory construction as to whether O 10 r 10 and, in particular its subrule (1), applies generally or only where leave to serve out has been granted under O 10.
In my view, while O 10 r 10 is expressed in somewhat general terms it is limited in its operation to where leave has been granted by the Court to serve out.
I have reached that view taking into account the textual indicators of:
1.rule 10 being located within O 10 and the references in r 10 to the service of writs out of the jurisdiction; and
2.the references to r 10 in O 10 r 1A(2) and (3) which brings r 10 within the regime of service out in O 10 more generally.
Such an interpretation is also, in my view, consistent with recognising that the provisions for leave to serve out extend the Court's personal jurisdiction over defendants and should be construed narrowly.
In my view then, the plaintiff would need to bring itself within O 10 r 1 (in this case) before the Court's discretion under O 10 r 10 as exercised by Lundberg J in Argonaut Partners is enlivened.
The orders made by Lundberg J do raise an interesting question as to whether service by sending documents to an email is necessarily service out of the jurisdiction and, if it is, where that service will actually take place. The Court will not ordinarily know at the time of making the order, one might surmise, exactly where the putative defendant will receive the email and open the attachment. The same, of course, might be said about any other electronic mode of communication. Even if the Court had a high level of confidence that a particular defendant was residing or working in a particular foreign jurisdiction, the Court would not know at the time of making the order whether, for example, the defendant would read the email and open the attachment while passing through some other part of Australia (including possibly Western Australia).
In another context, the question may be more than just 'interesting'. That is because the Court has always sought to exercise control over the place and manner of service out of the jurisdiction to some degree.
The orders sought by orders 3 and 4 of the re‑amended motion clearly were primarily premised on the basis that the plaintiff needed to, and could, obtain leave to serve out of the jurisdiction under O 10.
That premise has not been established for the reasons I have given above. Accordingly, in my view, O 10 r 10 is available to the plaintiff here.
Substituted service
I turn to consider whether the Court can and then ought to allow substituted service of the May 2023 writ (rather than any concurrent writ) pursuant to O 72 r 4.
Order 72 r 4 provides:
4.Substituted service
(1)Where by these rules personal service of a document is required and it appears to the Court that personal service of such document on a person required to be served is unpracticable, the Court may order that the document be served on that person by substituted service.
(2)An application for an order for substituted service shall be supported by an affidavit stating the facts on which the application is founded.
(3)Substituted service pursuant to an order under this rule is effected by taking such steps as the Court directs to bring the document to the notice of the person to be served, and has the same operations personal service.
In my view, both authority and principle are against the availability of substituted service in this case.
In Laurie v Carroll (1958) 98 CLR 310, 332 Dixon CJ, Williams and Webb JJ said:
The better view appears clearly enough to be that on that hypothesis the defendant is no longer amenable to the territorial jurisdiction exercised by an ordinary writ for service within the jurisdiction and the want of jurisdiction cannot be overcome by an order for substituted service … Any other view seems open to the objection … secondly, that it cannot be reconciled with the doctrine, established by authority and dictated by principle, that where the writ may not be served personally, an order for substituted service may not be made … fourthly, that in truth it does not involve a matter of procedure but an extension of jurisdiction. The acceptance of the view stated leaves no room for the order for substituted service in this case.
The Supreme Court of Victoria there had made an order allowing substituted service in lieu of personal service and the question in the appeal was whether that order could be sustained.[17]
[17] Laurie v Carroll (1958) 98 CLR 310, 316.
The respondents sought to support the substituted service order on the ground that the appellant had been in Victoria and had left that State in anticipation of the issue of the writ and to avoid service.[18]
[18] Laurie v Carroll (1958) 98 CLR 310, 317. The appellant left Victoria the day before the writ was issued out of the Supreme Court of Victoria.
At that time, service out of Victoria was provided for by the Service and Execution of Process Act 1901 (Cth) and O XI of the Rules of the Supreme Court 1957 (Vic).[19] The Court observed that it may be that the respondents' cause of action would not fall within either O XI or SEPA 1901.[20]
[19] Laurie v Carroll (1958) 98 CLR 310, 322.
[20] Laurie v Carroll (1958) 98 CLR 310, 322.
It was of some significance to the Court that the appellant was not a resident of, nor had any other connection with, Victoria.[21] It was said:
Laurie neither by reason of past history nor by reason of present domicile, residence or course of business stood in any general relation to the State of Victoria which would make him naturally or prima facie subject to the jurisdiction of the courts of the State … In all these circumstances the substance of the matter was that, unless the case could be brought within O. XI or [SEPA 1901], a contingency that must have appeared very dubious, the Supreme Court by ordering substituted service was really asserting a jurisdiction over the defendant Laurie which otherwise it could not possess, save in so far as it arose from the accidental circumstances of his brief visit to Melbourne. These are considerations which show that O. XI r. 2, ought not to have been used. It was invoked by the plaintiffs only for the purpose of giving the Supreme Court of Victoria jurisdiction where otherwise it did not exist. Accordingly the order for substituted service of the writ of summons ought not to have been made.[22]
[21] Laurie v Carroll (1958) 98 CLR 310, 332 - 333.
[22] Laurie v Carroll (1958) 98 CLR 310, 333 - 334.
In Kent v MacLellan [2002] WASC 199 [27] Pullin J stated the proposition distilled from Laurie v Carroll at 332 was:
Where a writ may not be served personally, an order for substituted service may not be made.
In that case, the orders under consideration had given leave for Kent to issue a writ against Lechmere Financial out of the jurisdiction and also allowed Lechmere Financial to be served by leaving a copy of the writ at the West Australian office of its previous solicitors: [3].
Pullin J held (in favour of Lechmere Financial) that the claims of Kent did not fall within O 10 r 1(1); and his Honour then expressed the view that no order ought to have been made for substituted service in those circumstances: [27].
In Mondial Trading Pty Ltd v Interocean Marine Transport Inc (1985) 65 ALR 155, 157 Dawson J considered that the plaintiff had to obtain leave for service outside the jurisdiction and attempt to effect service by that mode before it could obtain an order for substituted service within the jurisdiction. It appears that the mode of substituted service envisaged was giving notice to, or service upon, the defendants' solicitors in Australia.
To similar effect in the Federal Court are Ricegrowers' Co-operative Ltd v ABC Containerline NV (1996) 138 ALR 480, 483 ll. 3 - 10 (Tamberlin J); and Commissioner of Taxation v Ma (1999) 92 FCR 569, 571 [11] - [14] (Emmett J). To similar effect also is the decision of Austin J in ASIC v Sweeney [No 2] (2001) 38 ASCR 743; [2001] NSWSC 477 [40].
Leeming writing extra curially in Authority To Decide: The Law of Jurisdiction in Australia (2nd ed) at [6.5] traces, in short, the history of substituted service and says that the development of substituted service (and particularly by statute) did not expand:
… the jurisdiction of the Court; they merely provided another mechanism in respect of a defendant who was already amenable to service. For it was earlier established that this practice, and the rules by which it came to be governed, were not available if personal service could not be effected; to do more would enable boot-strapping extensions of jurisdiction. (citations omitted)
As far as I am aware the only case which may be to different effect is Carter Holt Harvey Woodproducts Australia Pty Ltd v David [2015] VSC 393, where Bell J allowed substituted service pursuant to that Court's rule 6.10 in circumstances where the whereabouts of the person to be served were unknown and they might be inside or outside Australia [10]. Rule 6.10 provided:
(1)Where for any reason it is impracticable to serve a document in a manner required by these Rules, the Court may order that, instead of service, such steps be taken as the Court specifies for the purpose of bringing the document to the notice of the person to be served.
(2)Where the Court makes an order under paragraph (1), the Court may order that the documents be taken to have been served -
(a)on the happening of any specified event; or
(b)on the expiry of any specified time.
(3)The Court may make an order under paragraph (1) notwithstanding that the person to be served is out of Victoria or was out of Victoria when the proceeding commenced.
It does not appear that Bell J required the plaintiff to have satisfied the service out provisions before considering whether substituted service under that Court's r 6.10 might be allowed.
With respect, I do not consider it necessary to express a view as to whether Bell J was correct in the application of the Victoria Supreme Court's Rules when one considers the principles in Laurie v Carroll and the other cases I have cited above.
It is enough, for present purposes, that I have reached the view that, in the present circumstances, substituted service is not available to the plaintiff as it has not otherwise satisfied what I understand to be a required head under O 10.
If I am wrong and there is jurisdiction under O 72 r 4 to make the substituted service orders sought by orders 3 and 4 of the re‑amended motion, then I would have made such orders.
It seems to me that the following matters would have supported the finding that personal service of the May 2023 writ was 'impracticable':
1.the provisions of the Credit Regulations apparently requiring these proceedings to be brought in this Court;
2.the difficulties that commencing in this Court poses for service out of the proceedings concerned with the Mortgage;
3.the plaintiff, so far, being unable to ascertain a certain physical address of either defendant in the United Kingdom, or elsewhere;
4.the plaintiff's attempts at physical service at the defendants' last known Western Australian address; and
5.the plaintiff's ongoing enquiries.
If it was a matter of discretion, this would not appear to me to be a case where the plaintiff was seeking an order for substituted service so as to avoid the requirements of the Rules in relation to service out. That seems evident to me by the fact that the plaintiff has made the application to have by the originating motion, the amended motion and the re‑amended motion.
Further, if I had come to exercise a discretion, I am cognisant that, with respect, eminently sensible orders for non‑personal service were made by Lundberg J in Argonaut Partners pursuant to O 10 r 10 (in what would have been factually, if not legally, analogous circumstances).
Transfer to the Supreme Court of Victoria
The amended motion added a proposed order 7 (which was maintained in the re‑amended motion):
In the alternative to paragraphs 1 to 6 of this Motion the Action be transferred to the Supreme Court of Victoria pursuant to section 5(6) Jurisdiction of Courts (Cross-vesting Act) 1987 (WA).
It may be that there is a typographical error in proposed order 7 of the re‑amended motion and the plaintiff intended to rely on s 5(2)(a)(iii) of the WA Cross‑vesting Act.18
The plaintiff has not yet addressed the Court on the availability or the basis for that transfer application but should be given an opportunity to do so in light of my reasons above.
In particular, the plaintiff should be given an opportunity to address whether the transfer is available in respect of the May 2023 writ where it has not been served and whether the service provisions of the Supreme Court of Victoria might allow the plaintiff a different opportunity to serve the defendants in the circumstances set out above.
It is not immediately clear to me how the service provisions of the Victorian Supreme Court might work in this case to allow service of a writ issued out of this Court such as the May 2023 writ.
There may be a question as to whether it would be 'in the interests of justice' to transfer the May 2023 writ to the Supreme Court of Victoria if it appeared no more likely that the plaintiff would be able to serve the defendants out of that Court.
The Court would benefit from further submissions from the plaintiff if it maintains its application as per proposed order 7.
Costs of the motion, amended motion and re‑amended motion
No doubt the plaintiff has incurred costs in the making of its original motion and then the two subsequent amendments to it in addition to the hearing before me so far.
A financier in the position of the plaintiff might, in the ordinary course, seek to 'add' such costs as 'recovery costs' to a debtor's indebtedness.
I am not asked by the application before the Court to determine whether that would be appropriate in this case. However, if I am correct in the reasons above, then the plaintiff could not have obtained leave to serve as per its original motion, amended motion nor its re-amended motion (save for the further determination of the transfer sought by proposed order 7). In those circumstances, it seems to me that it would be, at the least, unfair in a general sense for the costs of the doomed application to be passed on to the defendants via the contractual provisions (without expressing its view as to whether strictly the plaintiff might be able to do so as a matter of contractual right).19
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JC
Associate to the Honourable Justice Howard
10 NOVEMBER 2023
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