St John of God Health Care Inc v Kezic

[2017] WASC 64

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   ST JOHN OF GOD HEALTH CARE INC -v- KEZIC [2017] WASC 64

CORAM:   PRITCHARD J

HEARD:   7 MARCH 2017

DELIVERED          :   7 MARCH 2017

FILE NO/S:   CIV 2303 of 2016

BETWEEN:   ST JOHN OF GOD HEALTH CARE INC

Applicant

AND

ROSARIA KEZIC
Respondent

Catchwords:

Practice and procedure - Service - Substituted service

Legislation:

Vexatious Proceedings Restrictions Act 2002 (WA)
Rules of the Supreme Court 1971 (WA), O 72 r 4

Result:

Application for substituted service granted

Category:    B

Representation:

Counsel:

Applicant:     Mr S J Williams

Respondent:     No appearance

Solicitors:

Applicant:     Kott Gunning

Respondent:     No appearance

Cases referred to in judgment:

Attorney General (WA) v Lashansky [2014] WASC 42

PRITCHARD J: 

(This judgment was delivered extemporaneously on 7 March 2017 and has been edited from the transcript.)

1. This is an application by the applicant for substituted service of the originating summons in these proceedings.  The proceedings are brought pursuant to the Vexatious Proceedings Restrictions Act 2002 (WA) (the Act).  The applicant seeks an order that the respondent be restricted from pursuing litigation against it, pursuant to the terms of the Act.

2. The applicant has had difficulty serving the respondent with the originating summons. The difficulties have been outlined in a number of affidavits upon which the applicant relies.  Those affidavits are the affidavits of Arabella Grania Rose Phillips sworn 30 January 2017, 27 February 2017, and 1 March 2017.

3. In short, those affidavits indicate that there have been four attempts by process servers to serve the respondent at the last address that the applicant has for her, which is a premises in Balcatta (the Balcatta premises).  Each of those attempts has been unsuccessful.  (The Balcatta premises is recorded as the respondent's address on the electoral roll, it is the address recorded for her in the telephone book, and it has been confirmed more recently that that address is also an address of which the respondent is the registered proprietor.)

4. On a couple of occasions, when the process server has attended at the Balcatta premises, persons have been there.  On one occasion, a person identified herself as the daughter of the respondent and indicated that the respondent was overseas.  On more recent occasions, a male occupant of the premises told the process server that the respondent had been overseas, came back briefly, apparently, over Christmas, and then went overseas again for two to three months.  He did not give a precise indication as to when it was expected that the respondent would return.

5. In addition, there have been attempts by the applicant to serve the respondent by email to an email address which she has used in the course of litigation against the applicant, and there has also been an attempted phone call to the phone number that the applicant had for the respondent.

6. The present application, as I have said, is an application for substituted service. The application is made pursuant to O 72 r 4 of the Rules of the Supreme Court 1971 (WA) (RSC), which provides:

   (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 impracticable, 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 operation as personal service.

7. The inquiries that are required by O 72 r 4 RSC are twofold. First, the Court is required to consider whether personal service is impracticable. If personal service is impracticable, the second inquiry is the form of substituted service to bring the document to the notice of the person to be served.

8. For the reasons I have already given, I am satisfied that there have been attempts by the applicant to effect personal service on the respondent and that those attempts have been unsuccessful, and that personal service is, therefore, impracticable having regard to the circumstances.

9. I turn now, then, to the second inquiry, which is the form which substituted service should take.  The orders that are proposed by the applicant seek several forms of alternative service to personal service.  The first is that the applicant now seeks an order that there be service by registered post at the Balcatta premises.  Secondly, the applicant seeks to serve the occupant of the Balcatta premises with whom the process server has spoken on a couple of occasions.  That person indicated that he was happy to accept service and appeared to have some idea of when, in general terms, the respondent would be back from overseas.  It appears that the person is also aware, at least in general terms, of the respondent's movements.  Finally, counsel for the applicant also accepts that it would be sensible to effect service by email to the email address which the respondent has used in the course of litigation against the applicant. 

10. Given that the Balcatta premises is a property of which the respondent is the registered proprietor, that it is also her address on the electoral roll, and it appears to be her continuing place of residence other than when she is travelling overseas, the fact that the occupant of the premises appears to have knowledge of the respondent's whereabouts and, it appears, has the means to contact her (or, alternatively, has expressed a willingness to ensure that she receives documents which are served at the Balcatta premises), and, finally, the fact that the email address which the applicant proposes to use is the email address which the respondent has used in litigation, I am satisfied that those three means of service will, in due course, bring the originating summons to the respondent's attention.

11. Having reached that conclusion, it is not necessary for me to deal with questions of the degree of likelihood or confidence that the documents will come to the respondent's attention.[1]  (Matters which were referred to by Edelman J in Attorney General (WA) v Lashansky.)  It simply suffices for me to say that I am satisfied that service of the originating summons by the three means proposed will, in due course, bring that application to the respondent's attention.  In all of those circumstances, I will make orders for substituted service by the three means set out herein.

    [1] Cf Attorney General (WA) v Lashansky [2014] WASC 42 [13] (Edelman J).