Strauss v Macdonald (No 2)
[2023] VSC 377
•4 July 2023
| 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 to in the May Reasons.
By email dated 19 May 2023, the plaintiff’s solicitors provided to the court a second affidavit of Mr Hazell, sworn 19 May 2023 (Second Hazell Affidavit), in further support of the substituted service application. By the email the plaintiff’s solicitors also enquired as to whether the renewed application could be heard on the papers or, if not, brought forward to a hearing date earlier than the adjourned directions date of 23 June 2023. On 23 May 2023 I listed the matter for mention, which resulted in the making of further directions for the filing and service of any additional material in support of the substituted service application and setting the application down for further hearing before me on 14 June 2023 (June Hearing). In so doing, I raised a number of matters regarding the Second Hazell Affidavit for the plaintiff to consider in determining what, if any, additional material the plaintiff might wish to file in advance of the June Hearing.
Prior to the June Hearing the plaintiff’s solicitor requested that the hearing date be adjourned for a short period to enable further engagement with a New York attorney, Ms Grubin, in connection with one of the proposed methods of service that is later described in these reasons as the “Grubin Service Method”. As a consequence the further hearing of the substituted service application was adjourned to 4 July 2023.
On 23 June 2023 the plaintiff provided the court with a further affidavit of Mr Hazell sworn 23 June 2023 (Third Hazell Affidavit). The court was also informed by email from the plaintiff’s solicitors that they did not have any further matters that they wished to put before the court in support of the application. The email also stated that the plaintiff was content for the court ‘to make a final determination (one way or the other) on our client’s application based on all the material currently before [the court], and without further appearances.’
For the reasons that follow I have concluded that no substituted service order should be made on the material currently before the court and, consequently, the plaintiff’s application should be dismissed.[2] That being so, it is not necessary to address the plaintiff’s application for an effective service deeming order pursuant to r 6.10(2) of the Rules.
[2]But without prejudice to the plaintiff’s entitlement to make a further application at a later time should he be so advised.
These reasons should be read together with the May Reasons, although for ease of reference in parts of these reasons I have largely repeated sections of the May Reasons.[3] Unless otherwise indicated, defined terms in these reasons have the same meaning as in the May Reasons.
[3]Including, for example, the observations regarding the proceeding, the First Hazell Affidavit and the Principles and Observations section.
The Proceeding
The proceeding was commenced by writ and statement of claim filed on 8 August 2022. 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 sale of his shares in GetSwift Limited (GetSwift) prior to its collapse. The plaintiff alleges that by reason of the defendant’s misleading conduct and representations, the plaintiff was prevented from selling his GetSwift shares at the time or times that he would have chosen to have sold them.
The plaintiff alleges that had the alleged contravening conduct not been engaged in by the defendant he would have sold his GetSwift shares at specified times of his choosing and that, had he done so, he would have received substantially higher share sale prices than he in fact received when he did sell his shares. Although the quantum of the damages claim is not yet fully particularised, it is apparent from the terms of the statement of claim that the loss and damage claimed from the defendant is substantial and is alleged to amount to millions of dollars. During oral submissions at the May Hearing, Mr Hazell informed the court that the claim is for an amount in the order of $14–16 million.
The Affidavits
I have read and considered the three Hazell affidavits, which I address in turn below.
The First Hazell Affidavit
The First Hazell Affidavit addressed some brief background to the proceeding and GetSwift’s collapse, its liquidation, and its later reconstruction pursuant to a scheme of arrangement. It also recorded the attempts that have been made to locate and serve the defendant since 29 July 2022 and, among other things, addressed the plaintiff’s ongoing efforts to establish GetSwift’s insurance position.
The matters referred to in paragraphs 8 to 14 of the First Hazell Affidavit have caused Mr Hazell to be of the view that the defendant may have permanently moved to the United States, particularly as a result of GetSwift becoming domiciled in Canada to concentrate on its North American operations. Mr Hazell stated that he therefore assumed that the defendant is residing in the United States for the purpose of conducting GetSwift’s business. He said that to his knowledge there was no evidence to suggest that the defendant had returned to Australia since moving to the United States or since the proceeding had been filed.
Mr Hazell said that shortly before the proceeding was filed in August 2022, he spoke with Ms Fox of Quinn Emanuel Urquhart & Sullivan (Quinn Emanuel), who is a solicitor who previously represented the defendant prior to the issue of this proceeding, to see if Quinn Emanuel held instructions to accept service. Mr Hazell said that he was informed by Ms Fox that Quinn Emanuel were no longer instructed to act on behalf of the defendant and that the defendant had emigrated to the United States.
The GetSwift company search extract obtained by Mr Hazell on 14 April 2023 records the defendant as a previous director and records his address as 116 East 62nd Street, New York, NY, United States. Page 70 of that search extract reveals that this change of address was recorded following lodgement of a Form 484A1 that was received and processed by ASIC more than three years ago on 6 March 2020.[4] This address is not one of the addresses sought to be used by the plaintiff in the Proposed Service Methods.
[4]The Form 484A1 is recorded as having document number 1EEH37517 on page 70 of the search extract, being page 96 of 216 of Exhibit MTH 1 to the First Hazell Affidavit.
Mr Hazell also deposed that he had been engaged in discussions with a representative of GetSwift’s liquidator in Australia, Mr Domanko, from as early as August 2022. Mr Domanko informed Mr Hazell that he was not in contact with the defendant and therefore could not assist.
Mr Domanko was followed up by another of the plaintiff’s solicitors, Ms Santilli, on 6 February 2023. Mr Hazell deposed that Ms Santilli was informed that: Mr Domanko has had no direct contact with the defendant ‘in the past’; Mr Domanko has had indirect contact with the defendant through a New York attorney, Ms Grubin, ‘whereby he conveyed information to the defendant and vice versa’; and that Mr Domanko still does not know of the whereabouts of the defendant.
The First Hazell Affidavit detailed conversations with a solicitor, Mr Zawa, of Phi Finney McDonald (Phi Finney) in connection with Phi Finney’s attempts to locate and serve on the defendant some documents in a class action against GetSwift and the defendant that was being conducted in the Federal Court of Australia. Among other things, Mr Hazell was informed that the defendant’s former solicitor in the class action proceeding had filed a notice of ceasing to act and that in this document it was stated that the defendant’s last known residential or business address was 1185 Sixth Avenue, New York. Mr Hazell said that he had since become aware that this address was the business address of GetSwift’s now parent company, GetSwift Technologies Limited (GetSwift Technologies), in the United States. The plaintiff does not seek to serve documents on this address as one of the Proposed Service Methods.
Mr Hazell also deposed to GetSwift Technologies, and its holding company, GetSwift Inc, being subject to a bankruptcy petition in the United States, parts of which were exhibited. Based on information provided to Mr Hazell by Mr Zawa, Mr Hazell referred to Ms Grubin of Barclay Damon LLP being the New York attorney representing GetSwift Inc and GetSwift Technologies in the bankruptcy petition. This was supported in part by aspects of the petition exhibited to the First Hazell Affidavit because they recorded Ms Grubin of Barclay Damon LLP as acting for the ‘Debtor’, GetSwift Inc. Mr Zawa provided Ms Grubin’s email contact details to Mr Hazell by email dated 5 December 2022 and informed him that Ms Grubin ‘was the main contact’ and that she had been receiving instructions from the defendant regarding the financial position up to and including the liquidation. Mr Hazell said he was also aware from his discussions with Mr Zawa that Phi Finney had been attempting to locate the defendant for some time to serve him with documents in the class action proceeding but that this had been unsuccessful.
In a telephone call on 30 January 2023, Mr Zawa informed Ms Santilli that: Phi Finney had been making continuing attempts to locate the defendant but this had not been successful; documents in the class action proceeding had been unable to be served; Mr Zawa had been in contact with Ms Grubin to inform her that the class action was proceeding before the court in early February 2023 for a settlement approval hearing; and that Mr Zawa believed that Ms Grubin had conveyed this to the defendant. The basis of Mr Zawa’s belief was not referred to. Mr Hazell deposed that the class action settlement hearing proceeded and a settlement was approved, although neither GetSwift nor the defendant appeared either personally or through legal representation.
Mr Hazell also referred to an ASIC proceeding against GetSwift and the defendant that was the subject of a penalty hearing before Lee J in the Federal Court on 31 January 2023. It was said that neither GetSwift nor the defendant appeared personally or through legal representation in that ASIC penalty hearing. Media articles regarding the recent class action settlement hearing and the ASIC penalty hearings were exhibited to the First Hazell Affidavit.
Mr Hazell detailed further attempts by the plaintiff in August and September 2022 to contact the plaintiff by three emails to discuss the proceeding and said that no response had been received to those emails. Each of these emails was to the same ‘@getswift.co’ email address, from which it was said there was ‘no bounce back to the emails … thus indicating they were still valid’. Reference was also made to the plaintiff contacting an ex-football team member of the defendant, Mr Couch, in about January 2023. It was said that the plaintiff understood that Mr Couch either resides with or did reside with the defendant in the United States. Why the plaintiff had or has that understanding was not referred to. In any event, the evidence was that Mr Couch was unaware of the defendant’s precise whereabouts.
Notwithstanding the various unsuccessful attempts to locate the defendant by the plaintiff, the plaintiff’s solicitors, and Phi Finney, Mr Hazell expressed the opinion that the defendant ‘is on notice’ of the proceeding and ‘is aware of its existence’. Mr Hazell reached this view because of an article published in The Age on 9 August 2022, being the day after the proceeding was filed. The article was said to have been published online and in print on the front page of the paper as well as being republished by other media organisations.
Mr Hazell also deposed that he had sent a ‘friend request’ to the defendant’s Instagram account but that the defendant had not yet responded to that request.
On 13 January 2023 the plaintiff informed Mr Hazell that the defendant was attending a wedding on that day in Mexico. This was said to have been apparent from a picture of the defendant at that wedding from what appears to be the Instagram account of a person who is not the defendant. Mr Hazell said that he then attempted to get in contact with someone at the wedding to assist him with contacting the defendant but that his attempts were unsuccessful as the wedding had concluded by that time.
In response to an enquiry made of Mr Hazell during the May Hearing the court was appropriately informed that:
(a) a conscious strategic decision had been made not to contact Ms Grubin directly because the plaintiff’s solicitors considered it likely that this might close out an avenue of substituted service; and
(b) no attempts had been made to engage a process server in the United States given the difficulty in locating the defendant, the cost involved, and what were said to be the plaintiff’s modest means.[5]
[5]Although there was no evidence before the court regarding these matters and the plaintiff’s statement of claim contained allegations regarding material amounts received by him when he sold his GetSwift shares.
As a result of the matters referred to in the First Hazell Affidavit, Mr Hazell deposed that he had formed the view that personal service of the writ and statement of claim on the defendant is impracticable. He also said that he had formed the view and believed that if the writ and statement of claim were sent to the defendant by the following means[6] they would come to his attention:
[6]Being the Proposed Service Methods referred to in paragraph 1 of these reasons.
(a) directly to his various email addresses. Those email addresses were said to be an @getswift.co email address and an @gmail.com email address;
(b) an electronic message to the defendant’s Instagram account, which was specified in the evidence but need not be recorded in these reasons;
(c) a text message to the defendant’s mobile phone, the number of which was specified, and in respect of which Mr Hazell said ‘we understand still remains the phone number for the defendant’;
(d) an email to the solicitor who acted for the defendant in relation to pre-action correspondence, being Ms Fox the Managing Partner (Australia) at her Quinn Emanuel email address;[7] and/or
(e) by email and post to Ms Grubin of Barclay Damon LLP in the United States at her postal address and her email address referred to in the First Hazell Affidavit (Grubin Service Method).
[7]Which was also specified but need not be recorded in these reasons.
The Second Hazell Affidavit
In the Second Hazell Affidavit Mr Hazell addressed what transpired at the May Hearing, provided some further evidence regarding contact with Ms Grubin and the Grubin Service Method, and addressed the additional steps proposed to be taken to satisfy the requirements of r 6.10(1.1) of the Rules that I referred to in paragraphs 35 and 36 of the May Reasons. Whilst it is not necessary to set out the detail of this affidavit with respect to the additional evidence regarding recent contact with Ms Grubin and the Grubin Service Method, Mr Hazell deposed to the following:
(a) Sending an email to Ms Grubin on 4 May 2023 in which it was stated, among other things, that Mr Hazell was after some information from Ms Grubin which might assist him with providing some court documents to the defendant on behalf of the plaintiff and asking, among other things, ‘… are you still in contact with [the defendant] Joel in your capacity as the lawyer for GetSwift (US) in the US bankruptcy proceedings …’.
(b) Ms Grubin having responded by email stating, among other things, ‘… yes we are still in contact with [the defendant] Joel in connection with the US bankruptcy proceedings.’ A copy of this email exchange was exhibited.
(c) Mr Hazell exhibited a document described as ‘DOC48’ said to have been filed in the New York bankruptcy proceeding on 26 May 2022, by the debtor company GetSwift Inc. Mr Hazell stated that the document confirms that the defendant (in this proceeding) signed the document in his capacity as president and secretary of the debtor company, GetSwift Inc.
(d) Mr Hazell exhibited a lengthy audio file of what was said to be a section 341A meeting of creditors that was said to have been conducted by telephone conference in the New York bankruptcy proceeding at about 2:30pm on 7 September 2022. Mr Hazell deposed that the sound file recorded that during that meeting of creditors the following was said:
(i) Ms Grubin confirmed that she was in attendance on behalf of both debtors and that she was in attendance with a representative of both debtor companies, with the representative being Mr Macdonald, the defendant in this proceeding;
(ii) in relation to certain information described as ‘misinformation’ filed in the ‘DOC48’ in the New York bankruptcy proceeding, Mr Macdonald had stated that Ms Grubin’s law firm had brought the issue to his attention; and that
(iii) Ms Grubin said that the defendant is the person who told her about the misinformation in the DOC48 when he and Ms Grubin first started working together.
The Third Hazell Affidavit
As mentioned, following the mention of the proceeding on 23 May 2023 and the making of further directions to facilitate the filing and service of additional material, the Third Hazell Affidavit was provided to the court on 23 June 2023. This affidavit referred to the First Hazell Affidavit and the Second Hazell Affidavit; addressed the mention before me on 23 May 2023; stated that the purpose of the affidavit was to set out the steps taken with respect to further communications with Ms Grubin in connection with the proposed Grubin Service Method; and detailed the further communications with Ms Grubin during the period of 7–21 June 2023.
Mr Hazell referred to a Microsoft Teams conference he had with Ms Grubin on 7 June 2023 in which Ms Grubin informed Mr Hazell and Ms Santilli, among other things, that: she had no idea where the defendant is and that was ‘the honest to God truth’; that she did not know where he is and did not think that he has a fixed abode and that he is all over the place; that when she does communicate with him she does so via a text and then he calls Ms Grubin to discuss; that she would need to take on notice the query as to whether she would be able to provide the defendant’s contact details she had on file, or could forward the Victorian Supreme Court statement of claim to him; and that she would need to speak to her colleagues about that matter.
Mr Hazell stated that a week passed after the Microsoft Teams conference and that, as they had not heard from Ms Grubin, a courtesy follow-up email was sent. He said that a further follow-up email was sent on 19 June 2023, noting that further material had to be filed by 23 June 2023. Mr Hazell said that as a response had still not been received he caused Ms Santilli to phone Ms Grubin on 21 June 2023 and that a brief conversation took place between them on that date. The details of that conversation were not referred to in the affidavit, although Mr Hazell exhibited an email from Ms Grubin sent to Ms Santilli following the call. The substantive text of that email was in the following terms:
As I indicated on the telephone earlier today, we do not have the contact information for Joel Macdonald, as he is not a firm client.
In addition, we cannot forward any documents to him from you.
Regards,
Janice
Janice B. Grubin
Pronouns: She/Her/Hers
Partner
Mr Hazell also stated in his affidavit that except for the recent communications with Ms Grubin referred to in the Third Hazell Affidavit, neither he, nor Ms Santilli, nor the plaintiff have taken any further steps in relation to ascertaining the location of Mr Macdonald; contacting Mr Macdonald via email, phone or a social media platform; and/or engaging a personal investigator.
Submissions
The plaintiff filed a written submission dated 17 April 2023 (April Written Submission), which was relied upon at the May Hearing. At the mention of the proceeding on 23 May 2023, the orders made included an order that, by 4:00pm on 6 June 2023, the plaintiff file any further evidence on which he wished to rely in support of his application for substituted service, together with a revised outline of submissions. At the request of the plaintiff, that date was extended until 23 June 2023 by my orders of 8 June 2023, when the hearing was also relisted for 4 July 2023 rather than 14 June 2023.
The plaintiff did not provide a revised outline of submissions by the dates referred to, or at all. As mentioned, by the plaintiff’s solicitor’s email of 23 June 2023, the plaintiff forwarded to the court the Third Hazell Affidavit. The plaintiff’s solicitors also informed the court that they did not have any further matters that they wished to put before the court in support of the application and invited its determination without further appearance. The matter remained listed for 4 July 2023 and was addressed in open court.
Having regard to the above, I infer that the plaintiff had no submissions to make in support of his application other than those previously made, and notwithstanding the additional evidence regarding the further communications with Ms Grubin. That said, and given the limited nature of the further steps taken subsequent to the mention on 23 May 2023, it seems likely that this course was influenced by cost considerations, noting also that this had previously been raised by Mr Hazell at the May Hearing. Consequently, I will proceed by taking into account the three affidavits of Mr Hazell, the April Written Submissions, and the oral submissions made at the May Hearing.
The submissions made in the April Written Submissions and at the May Hearing were addressed in paragraphs 23–28 of the May Reasons, to which I refer but will not set out again.
Having regard to the content of the Second Hazell Affidavit and the Third Hazell Affidavit, it is apparent that the plaintiff contends that he has satisfied the ‘impracticable to serve’ threshold requirement in r 6.10(1) of the Rules and that he maintains his contention that it is at least likely that the adoption of the Proposed Service Methods, including the Grubin Service Method, will bring the Service Documents to the attention of the defendant.
Principles and Observations
I addressed some principles and observations regarding applications for substituted service in paragraphs 29–36 of the May Reasons. For ease of reference, it is convenient to repeat in almost identical terms that which I set out in the May Reasons.
Rules 6.10(1), (2) and (3) of the Rules provide as follows:[8]
[8]See also rr 6.10(1.1) and (1.2) regarding service by email, discussed further below.
6.10Substituted service
(1)Where for any reason it is impracticable to serve a document in the 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 document 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:
(a)is out of Victoria; or
(b)was out of Victoria when the proceeding commenced.
As the terms of r 6.10(1) of the Rules make clear, the purpose of any permitted method of substituted service is to bring the relevant documents to the notice of the person to be served.
As Garde J noted in Austin v Dobbs (Austin),[9] r 6.10 ‘… has a long history, and there are many past decisions …’.[10] Observations that have been made regarding the operation of r 6.10 and similar rules include the following:
[9][2018] VSC 755.
[10]Ibid at [28], noting also the cases cited at footnote 5 in that paragraph.
(a) The primary object of substituted service is to bring to the knowledge of the person in respect of whom substituted service is sought the whole proceeding, so that the person can take such steps as they think proper to protect their interests and rights. It is not proper to substitute service of process in a court of law where there is no belief that the service will bring the proceedings to the knowledge of the person in question or of any person representing their interests.[11]
[11]See Miscamble v Phillips and Hoeflich (No. 2) [1936] 2 St R QD 272 at 274 (Starke J) (Miscamble).
(b) The ‘operative condition’ in the opening words of the rule is that it be ‘impracticable to serve a document in the manner required by [the] Rules’. The expression ‘for any reason’ has been said to be broad and to be given a wide meaning. What is required is that, for any reason, it is impracticable to serve the document in the manner required by the Rules. Where the court finds that this condition is satisfied and it is proper to do so in the exercise of the court’s discretion, an order for substituted service may be made, including with respect to a person who is outside Australia. As Bell J has observed, Order 7 does not derogate from the breadth and operation of r 6.10.[12]
[12]See generally Carter Holt Harvey Woodproducts Australia Pty Ltd v David [2015] VSC 393 (Carter Holt Harvey), [9]–[12] (Bell J).
(c) The mere fact that a person is outside Australia is not sufficient in and of itself to establish that it is impracticable, and it is not permissible to use substituted service only for the purpose of side stepping the obstacles to personal service abroad.[13] By parity of reasoning it may be added that, unless the requirements of r 6.10(1) are satisfied and it is a proper exercise of the court’s discretion to order substituted service, it is similarly not permissible to use substituted service for the purpose only of sidestepping other obstacles to serving documents in accordance with the Rules.
[13]See Carter Holt Harvey at [9]–[12] (Bell J).
(d) It does not inexorably or necessarily follow that because a document cannot be served promptly that this will mean that service in accordance with the Rules is impracticable. It will always depend on the facts, and in every case it is necessary to consider the requirements of the rule by reference to the individual circumstances in question.[14]
[14]See Austin at [28]–[33] (Garde J).
(e) As was the case in Howse v Campbell (Howse),[15] substituted service has been ordered in cases where a defendant could not be served and there were just grounds to believe that the defendant was withdrawing from service.
[15][1881] VII VLR 145.
(f) As Garde J observed in Austin,[16] r 6.10 is also to be read and applied in the context of the Civil Procedure Act 2010 (Vic) (CP Act), including the overarching purpose of facilitating the just, efficient, timely and cost-effective resolution of the real issues in dispute.[17]
(g) Once r 6.10 is engaged, the principal matter for the court to consider, having regard to the particular facts and circumstances of each case, is whether steps can be taken for the purpose of bringing the document to the notice of the person to be served. If no such steps can be identified where little is known about the actual whereabouts or domestic connections of a person then that may be a discretionary reason for refusing an order for substituted service. However, where the steps proposed are very likely to bring the court documents to the attention of the person in question, then an order may be made.[18]
(h) Some cases have involved orders directing service on a former solicitor, whether they acted in relation to the same matter or a different matter. Howse[19] is an example where Holroyd J noted that the solicitor who had acted for the defendant previously had said in his affidavit that ‘… he has no instructions to accept service ...’. His Honour observed that, in the particular circumstances of that case, this was ‘not a satisfactory answer’ and concluded that the solicitor having recently acted for the defendant he (Holroyd J) ‘… should infer that he [the solicitor] could communicate with [the defendant] if he liked …’.[20]
[16][2018] VSC 755, [31]–[32].
[17]Section 7 of the CP Act. See also the obligations imposed upon the court in this context by ss 8 and 9 of the CP Act.
[18]See Carter Holt Harvey at [15].
[19][1881] VII VLR 145.
[20]Ibid at 148.
A review of a number of the authorities also reveals some differences of language used by judges when considering the exercise of discretion in the context of the object of the proposed method of service being bringing the relevant proceeding or documents to the attention of the person to be served. For example, in Foxe v Brown,[21] Mason J sitting as a single judge in the High Court referred to the need to establish that the proposed service method was ‘likely’ to bring the writ to the attention of the defendant. The same approach was taken by Wilson J in Permanent Custodians Limited v Massey.[22] Justice Bell in Carter Holt Harvey[23] referred to the proposed service methods as being ‘very likely’ to bring the relevant court documents to the attention of the defendant. Justice Garde in Austin[24] was satisfied that the proposed service steps ‘will’ be effective in bringing the proceeding to the attention of the defendant. Judicial Registrar Clayton in Hassan v Noa[25] endorsed the view expressed by the Court of Appeal in Porter v Freudenberg[26] that the methods of service must ‘in all reasonable probability, if not certainty, be effective in bringing knowledge of the writ to the defendant’. After referring to this case, Sloss J in Chen v Blockchain Global Limited & Anor[27] made substituted service orders, observing that she was satisfied that the proposed steps taken together ‘would be likely’[28] to bring the originating process to the attention of the relevant defendant.
[21](1984) 58 ALR 542, 546–7.
[22][2009] QSC 4, [6], [12].
[23][2015] VSC 393, [15].
[24][2018] VSC 755, [39].
[25][2020] VSC 308, [44]–[57].
[26][1915] 1 KB 857.
[27][2020] VSC 751.
[28]Ibid [23].
Given that I have determined that it has not been established that it is at least likely that service of the Service Documents by the Proposed Service Methods will bring the proceeding or documents to the attention of the defendant, it is not necessary for me to address this potential issue further. It is also to be remembered that each case is dependent upon its own facts and that the choice of language adopted by different judges is in some instances impacted by the particular circumstances of the case in question.[29] That said, and assuming the threshold requirement is satisfied so as to enliven the discretionary power, as I mentioned in the May Reasons, in my view it is open to this court to make a substituted service order under r 6.10 of the Rules where it is established that the proposed service method would be likely to bring the relevant documents to the attention of the person to be served.
[29]Including, at times, differences in the terms of the relevant rule.
With respect to proposed service by email, I refer also to the recent observations of Elliott J in Foris GFS Australia Pty Ltd v Manivel (Foris GFS),[30] including:
(a) his Honour’s observations regarding the need for appropriate caution, depending on the facts of the case, where substituted service is sought to be effected by the use of a link in an email; and
(b) his Honour’s observations about considering whether it is necessary or desirable in the circumstances of a given case to provide to the email recipient a means for independently verifying that the email sent to effect substituted service is authentic.[31]
[30][2022] VSC 482, [43]–[46], [56]–[60].
[31]For completeness I refer more generally also to the recent observations made by Delany J in Jabiru Satellite Ltd v Societe Generale [2021] VSC 544 and Lyons J in Rio Tinto Shared Services Pty Ltd v English DataSystems LLC [2021] VSC 660 regarding ord 80 and r 7.09 of the Rules. I refer also to Macaulay J’s decision in Andrianakis v Uber Technologies (Ruling No 1) [2019] VSC 850 and the Court of Appeal’s appeal decision from the judgment of Macaulay J in Uber Australia Pty Ltd v Andrianakis [2020] VSCA 186.
The issues raised by Elliott J in Foris GFS were addressed by recent amendments to r 6.10 of the Rules, which introduced rr 6.10(1.1) and (1.2). Among other things, these rules impose specific additional requirements when substituted service is to be effected by email, with the requirements being directed in part to providing the email recipient with notice of the means by which they can independently verify the authenticity of the email. Rules 6.10(1.1) and (1.2) are in the following terms:
(1.1) Unless the Court otherwise orders, where an order under paragraph (1) specifies that a step to be taken includes service by email, the order shall require that the email contain within the body of the email, in the same size font as the rest of that part of the email, the following—
(a) a statement that the email has been sent pursuant to an order of the Supreme Court of Victoria;
(b) the address of the Court’s website ( together with a statement that the website may be found by using a search engine without the need to use this address directly;
(c) where applicable, the name of the judicial officer in charge of the conduct of the proceeding, together with the contact details of that judicial officer’s associate;
(d) a statement that the judicial officer’s associate may be contacted, and that their contact details are available on the Supreme Court website, to verify the existence of the proceeding and the fact that the court order for substituted service has been made;
(e) where applicable—
(i) the name, address and telephone number of the solicitor’s firm of the originating party;
(ii) the name and email address of an individual in the firm of solicitors to whom reference can be made in respect of the proceeding;
(f) any other matter that the Court considers should be included in the email.
(1.2) Paragraph (1.1) applies in addition to the requirements for service by email under Rule 6.07(2.2) to (2.4).
Consideration and Disposition
Impracticable to Serve the Defendant in the Manner Required by the Rules
For the reasons set out in the May Reasons, I was satisfied that it had been established that the ‘impracticable’ threshold requirement in r 6.10(1) of the Rules had been established on the evidence. That is, it had been established that it was impracticable for the plaintiff to serve the writ and statement of claim on the defendant in accordance with the requirements of the Rules. At its core that was because notwithstanding the reasonable steps that have been taken by the plaintiff, the defendant has been unable to be located. I refer in this regard to paragraphs 37 to 43 of the May Reasons without setting them out.
A little more than nine weeks have passed since the May Hearing. It remains necessary for the court to be satisfied at this point in time that the ‘impracticable’ threshold requirement has been met before the discretionary power in r 6.10(1) to order substituted service is enlivened.
For the same reasons referred to in paragraphs 37 to 43 of the May Reasons, I remain satisfied that the plaintiff has established on the evidence before me that it is impracticable for the plaintiff to serve the writ and statement of claim on the defendant in accordance with the requirements of the Rules. Notwithstanding that reasonable steps have been taken by the plaintiff, the defendant has still been unable to be located and the evidence in the First Hazell Affidavit is sufficiently probative of that fact today, as it was at the time of the May Hearing. That said, the further passage of time will need to be considered in this context should a further application be made in the future.
To some extent this impracticability of service is reinforced by Mr Hazell’s evidence in his third affidavit regarding Ms Grubin having ‘no idea’ where the defendant is, which was ‘the honest to God truth’, and his evidence that Ms Grubin did not think the defendant had a fixed abode and that he was all over the place.
It is apparent that it remains the position that the plaintiff and his solicitor have a firm belief that the defendant has taken and is taking positive steps to evade service. As stated in paragraph 42 of the May Reasons, it is apparent from the evidence how (at least) a question arises as to whether the defendant is seeking to evade being located by the plaintiff or his solicitors in connection with the service of the writ and statement of claim filed in this proceeding. While I accept that this may be the case, it is not necessary to draw such an inference at this point in order to be satisfied that the plaintiff has established that it is impracticable to serve the defendant in accordance with the Rules.
Should the Court make the Substituted Service Orders?
The question that remains is whether the court should exercise its discretion under r 6.10(1) of the Rules in favour of the plaintiff by making substituted service orders in respect of the Grubin Service Method, whether alone or in combination with one or more of the Proposed Service Methods. The central remaining issue in this context is whether the plaintiff has established on the evidence that using the Grubin Service Method alone, or in combination with one or more of the Proposed Service Methods, is at least likely to bring the Service Documents to the attention of the defendant.
Having given careful consideration to each of the Proposed Service Methods (including the Grubin Service Method), on the evidence now before the court I am not satisfied that the plaintiff has established that it is at least likely that adopting the Grubin Service Method, whether alone or in combination with one or more of the other Proposed Service Methods, will bring the Service Documents to the attention of the defendant.
In so concluding, and as was the case with the conclusion reached in the May Reasons, I have also taken into account that r 6.10 is to be read and applied in the context of the CP Act, including the court’s obligations under that Act, and the overarching purpose of facilitating the just, efficient, timely and cost-effective resolution of the real issues in dispute.[32]
[32]As referred to earlier in the Principles and Observations section of these reasons.
Proposed Service Methods Other Than the Grubin Service Method
Notwithstanding the observations made in the May Reasons and at the mention in open court on 23 May 2023, there was no additional evidence regarding any of the Proposed Service Methods other than the Grubin Service Method. Mr Hazell also appropriately disclosed in the Third Hazell Affidavit that, other than the contact with Ms Grubin, neither he, Ms Santilli, nor the plaintiff had taken any further steps in relation to ascertaining the defendant’s location, contacting the defendant by email, phone or social media, or engaging a personal investigator. That being so, except for the passage of a short period of time, the circumstances in relation to the Proposed Service Methods other than the Grubin Service Method have not changed since the May Hearing and the evidence in respect of these service methods remains the same, as was addressed in the May Reasons. It follows that the court has not been provided with any additional evidence in relation to those service methods.
Having further considered the evidence and submissions previously made in relation to Proposed Service Methods other than the Grubin Service Method, I am again of the view that the plaintiff has not established that it is likely that resort to one or more of these Proposed Service Methods will bring the Service Documents to the attention of the defendant.
In paragraphs 48–63 of the May Reasons I set out why I was not satisfied that the plaintiff had established that it was likely that resort to one or more of these Proposed Service Methods would bring the Service Documents to the attention of the defendant. As no additional evidence has been put before the court in relation to any of these matters, noting also that it was not suggested that any relevant circumstances had changed, my reasons for so concluding in relation to these Proposed Service Methods are the same as I set out in the May Reasons, to which I refer but will not repeat. For ease of reference, I refer to the following:
(a) paragraphs 49–53 of the May Reasons in relation to the proposed service by sending the Service Documents to the @getswift.co email address;
(b) paragraphs 54–56 of the May Reasons in respect of the proposed service by sending the Service Documents to the @gmail.com email address;
(c) paragraphs 57–59 of the May Reasons in respect of the proposed service by using what was thought to be the defendant’s Instagram account;
(d) paragraphs 60–61 of the May Reasons in respect of the proposed service by sending a text message to what was thought to be the defendant’s mobile telephone number;
(e) paragraphs 62–63 of the May Reasons in respect of the proposed service by sending the Service Documents by email (or post, or delivery) to Ms Fox at Quinn Emanuel; and
(f) paragraph 67 of the May Reasons in respect of the contention that the defendant would be aware of the proceeding by reason of media coverage.
The Grubin Service Method
The question that remains is whether the additional evidence in the Second Hazell Affidavit and the Third Hazell Affidavit regarding communications with Ms Grubin, when considered together with the evidence in the First Hazell Affidavit, means that the court can now be satisfied that it is likely that the adoption of the Grubin Service Method will bring the Service Documents to the attention of the defendant.
The short answer to this question is no.
I refer to, without repeating, my observations regarding the Grubin Service Method in paragraphs 64–66 of the May Reasons. The evidence relied upon in relation to the Grubin Service Method at the May Hearing was limited and incomplete, as I have previously observed. Although further direct communications have now occurred between the plaintiff’s solicitors and Ms Grubin, these communications do not in my view improve the position of the plaintiff for present purposes — which is of course not a criticism of the plaintiff or the steps taken in relation to Ms Grubin by the plaintiff’s solicitors. Indeed, it was in my view entirely appropriate for the plaintiff’s solicitors to seek further information from Ms Grubin in the way that they did.
That said, the further communications with Ms Grubin referred to in the Third Hazell Affidavit raise additional concerns that the adoption of the Grubin Service Method will not make it likely that the Service Documents will be brought to the attention of the defendant. In this context I refer to the following:
(a) Ms Grubin’s statements that she has no idea where the defendant is, which is ‘the honest to God truth’;
(b) Ms Grubin’s statement that she does not know where the defendant is, that she does not think he has a fixed abode and that he is all over the place; and
(c) Ms Grubin’s email on 21 June 2023, following the discussion with Ms Santilli, and seemingly after having consulted with her colleagues, in which she stated that:
(iv) Ms Grubin and her firm do not have the contact information for the defendant as he is not a firm client; and
(v) Ms Grubin and her firm cannot forward any documents to the defendant from the plaintiff’s solicitors.
The fact that Ms Grubin said that ‘we communicate with him [the defendant] via text and then he calls us to discuss’ does not in my view relevantly improve the position for the plaintiff when this is considered in the context of the evidence overall. Even if it were to be assumed that the sending of a text to the defendant by Ms Grubin referring to the proceeding, the Service Documents, and their availability would be likely to bring the Service Documents to the attention of the defendant (which is not necessary to decide), I am not satisfied on the evidence before me that such a text message would be sent by Ms Grubin to the defendant if the Service Documents were provided to her with a request to send a text message about them to the defendant. Of course this is not a criticism of Ms Grubin. Ms Grubin and her firm are strangers to the proceeding, and on the evidence before me the defendant is not — and it seems has not been — a client of Ms Grubin’s firm. I also note again Ms Grubin’s positive statement that she cannot forward any documents to the defendant.
Taking into account all of the evidence, in the circumstances under consideration the plaintiff has not established that the adoption of the Grubin Service Method, whether considered alone or in combination with one or more of the Proposed Service Methods, will likely bring the Service Documents to the attention of the defendant.
Other Matters
The observations made in paragraphs 68 to 71 of the ‘Other Matters’ section of the May Reasons remain applicable, to which I refer to but will not repeat.
Whilst the plaintiff’s solicitors have raised the prospect of the writ becoming stale if service cannot be effected, this aspect does not assist the plaintiff on this application because it does not assist in establishing that one or more of the Proposed Service Methods will likely bring the Service Documents to the attention of the defendant. It is also to be remembered that although r 5.12(1) of the Rules relevantly provides that a writ shall only be valid for one year after the day that it is filed, rr 5.12(2) and (3) provide a mechanism for a plaintiff to apply to extend the period of validity of the writ where it has not been or will not be served in the 12-month period. Rule 5.12 provides as follows:
(1)A writ or an originating motion shall be valid for service for one year after the day it is filed.
(2)Where a writ or originating motion has not been served on a defendant, the Court may, from time to time, by order extend the period of validity for such period from the day of the order as the Court directs, being not more than one year from that day.
(3)An order may be made under paragraph (2) before or after expiry.
(4)The plaintiff may apply under paragraph (2) without notice to the defendant, but if the Court considers that the defendant ought to be heard, the Court shall—
(a)adjourn the further hearing; and
(b)direct the plaintiff to give notice to the defendant by summons or otherwise.
(5)Where an order is made under paragraph (2), the Prothonotary shall stamp any sealed copy originating process for service with the date of the order and the extended date of validity.
Conclusion and Proposed Orders
Although the plaintiff has established that service of the Service Documents on the defendant in accordance with the Rules is currently impracticable because he cannot be located, the plaintiff has not established on the evidence before the court that one or more of the Proposed Service Methods (or any combination of them) will likely bring the Service Documents to the attention of the defendant. Consequently, it is not appropriate to make a substituted service order in respect of one or more of the Proposed Service Methods at this time. That being so, it is not necessary to address the plaintiff’s additional application for an ‘effective service’ deeming order under r 6.10(2) of the Rules.
Given the above, and that which transpired at and following the May Hearing, it is appropriate to order that the plaintiff’s application for substituted service by summons filed 17 April 2023 be dismissed, with costs reserved. Orders to this effect will be made, but they will be without prejudice to the plaintiff’s right to make a further application for substituted service supported by additional evidence in the future should he be so advised.
I will also reserve liberty to apply.
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