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Strauss v Macdonald

Strauss v Macdonald

Case [2023] VSC 226 1 May 2023

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

S ECI 2022 03004

JAMES STRAUSS	Plaintiff
v
JOEL MACDONALD	Defendant

JUDGE:	Connock J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 May 2023
DATE OF JUDGMENT:	1 May 2023 Ex tempore; revised 1 May 2023
CASE MAY BE CITED AS:	Strauss v Macdonald
MEDIUM NEUTRAL CITATION:	[2023] VSC 226

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PRACTICE AND PROCEDURE — Application for substituted service of writ and statement of claim — Where defendant’s location is not known — General principles for substituted service — Requirements for substituted service by email and email links — Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 6.10(1), 6.10(1.1) and (1.2), 7.02, 7.05, 7.09 — Substituted service refused at this time — Application adjourned to allow further steps to be taken and further evidence adduced — Consideration of the probability or otherwise of the proposed methods of service bringing the documents and the proceeding to the attention of the defendant — Plaintiff not established on the evidence that the proposed methods of service will likely bring the writ and statement of claim to the attention of the defendant.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	M Hazell (solicitor)	Macpherson Kelley
For the Defendant	No appearance

HIS HONOUR:

Introduction and Summary

By summons filed 17 April 2023, the plaintiff seeks orders pursuant to r 6.10(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules) for substituted service upon the defendant of the writ and statement of claim and related documents by the various proposed methods of service later referred to in paragraph 22 of these reasons (Proposed Service Methods). The plaintiff also seeks an ‘effective service’ deeming order pursuant to r 6.10(2) of the Rules.

The application was supported by an affidavit of the plaintiff’s solicitor, Michael Hazell, sworn 14 April 2023 (Hazell Affidavit) and the plaintiff’s written submission filed on 17 April 2023, which was supplemented by oral submissions made by Mr Hazell at the hearing of the application.

For the reasons that follow I have concluded that no substituted service orders should be made at this time. That being so it is not necessary to address the application for an ‘effective service’ deeming order under r 6.10(2).

Subject to hearing further from the plaintiff, I do not propose to dismiss the application at this point but propose to allow the plaintiff a further opportunity to take additional steps and adduce additional evidence in support of the application should he wish to do so. Unless the plaintiff submits otherwise, I propose to adjourn the further hearing of the plaintiff’s application to a future date.

The Proceeding

The proceeding was commenced by writ and statement of claim filed on 8 August 2022. For present purposes it is not necessary to address the detail of the claims made by the plaintiff against the defendant. Briefly, the plaintiff seeks substantial damages and other relief from the defendant in connection with the alleged…

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 Strauss v Macdonald

Details

AGLC: Strauss v Macdonald [2023] VSC 226
Case: [2023] VSC 226
Decision Date: 1 May 2023 Ex tempore; revised 1 May 2023

CaseChat Overview and Summary

The matter of Strauss v Macdonald involved the plaintiff seeking substituted service of a writ and statement of claim against the defendant, whose whereabouts were unknown. The application was heard in the Supreme Court of Victoria. The plaintiff sought to serve the writ and statement of claim on the defendant through alternative means, including email and email links, due to the unavailability of traditional service methods. The court was tasked with determining whether the proposed substituted service methods complied with the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and whether such methods would likely bring the documents and the proceeding to the defendant's attention.

The court examined the requirements for substituted service under the relevant rules, specifically focusing on rules 6.10(1), 6.10(1.1) and (1.2), 7.02, 7.05, and 7.09. It considered whether the plaintiff had established a probability that the proposed methods of service would effectively reach the defendant. The court held that, based on the evidence presented, the plaintiff had not demonstrated that the proposed methods of service would likely bring the writ and statement of claim to the defendant's attention. Consequently, the application for substituted service was refused at that time.

The court adjourned the application to allow the plaintiff further opportunities to take steps and adduce evidence to support the likelihood of the defendant being served. The decision underscored the necessity for the plaintiff to provide compelling evidence that the chosen methods of substituted service would indeed reach the defendant and bring the proceeding to their attention. The adjournment provided the plaintiff with a chance to address the deficiencies in their application and present a more robust case for substituted service.

Orders