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Strauss v Macdonald (No 2)

Strauss v Macdonald (No 2)

Case [2023] VSC 377 4 July 2023

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST

S ECI 2022 03004

JAMES STRAUSS	Plaintiff
v
JOEL MACDONALD	Defendant

JUDGE:	Connock J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 May and 4 July 2023
DATE OF JUDGMENT:	4 July 2023
CASE MAY BE CITED AS:	Strauss v Macdonald (No 2)
MEDIUM NEUTRAL CITATION:	[2023] VSC 377

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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 not ordered — Not established that proposed service methods likely to bring documents to the attention of the defendant.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	A Santilli (solicitor) – 23 May 2023. M Hazell (solicitor) – 4 July 2023.	Macpherson Kelley
For the Defendant	No appearance

HIS HONOUR:

Introduction and Summary

By summons filed 17 April 2023, the plaintiff sought 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 (Service Documents) by the various proposed methods referred to in paragraph 22 of my reasons (Proposed Service Methods)[1] in Strauss v Macdonald [2023] VSC 226, which I delivered on 1 May 2023 (May Reasons). The plaintiff also sought an ‘effective service’ deeming order pursuant to r 6.10(2) of the Rules.
[1]Referred to in paragraph 26 below.

The application was supported by an affidavit of the plaintiff’s solicitor, Michael Hazell, sworn 14 April 2023 (First 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 on 1 May 2023 (May Hearing). For the reasons set out in the May Reasons:

(a) I concluded that the plaintiff had established that service of the documents on the defendant in accordance with the Rules was impracticable.

(b) I determined that the plaintiff had not established on the evidence then before the court that one or more of the Proposed Service Methods (or any combination of them) would likely bring the Service Documents to the attention of the defendant.

(c) I declined at that point to exercise the court’s discretion in favour of the plaintiff and make orders for substituted service.

(d) Rather than dismissing the substituted service application I adjourned its further hearing to a future date. This was done to enable the plaintiff to consider his position and to take such further steps, if any, as he may be advised to take in connection with the adducing of further evidence or taking additional steps in relation to the Proposed Service Methods or other service methods. These matters were referred…

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 (No 2)

Details

AGLC: Strauss v Macdonald (No 2) [2023] VSC 377
Case: [2023] VSC 377
Decision Date: 4 July 2023

CaseChat Overview and Summary

The case of Strauss v Macdonald (No 2) involved an application by the plaintiff for substituted service of the writ and statement of claim against the defendant. The defendant’s location was unknown, prompting the plaintiff to seek an order for substituted service under the Supreme Court (General Civil Procedure) Rules 2015 (Vic). The plaintiff proposed service by email, email links, and personal delivery at the defendant’s last known address.

The court was tasked with determining whether the plaintiff had established that the proposed methods of substituted service were likely to bring the documents to the attention of the defendant. This required an examination of the relevant provisions in the Supreme Court Rules, specifically rules 6.10(1), 6.10(1.1) and (1.2), 7.02, 7.05, and 7.09. The court assessed the evidence and arguments presented by the plaintiff to decide if the proposed methods met the requirements for substituted service.

In considering the application, the court found that the plaintiff had not provided sufficient evidence to demonstrate that the proposed methods of service were likely to be effective. The court emphasised the importance of establishing a reasonable likelihood that the documents would come to the defendant’s attention. Given the lack of evidence, the court concluded that the application for substituted service should not be granted. Consequently, the plaintiff’s application was dismissed.

No further orders were made by the court in this instance. The plaintiff was required to continue efforts to locate the defendant in order to effect personal service of the writ and statement of claim.

Orders