Strauss v Macdonald

In the matter of Strauss versus Macdonald, the dispute involved an application for substituted service of a writ and statement of claim, where the defendant's whereabouts were unknown. The application was heard in the Supreme Court of Victoria. The plaintiff, Strauss, sought to serve the writ and statement of claim through alternative methods as the defendant, Macdonald, could not be located using standard methods. The primary legal issues before the court were whether the proposed substituted service methods complied with the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and whether they had a reasonable chance of notifying the defendant of the proceeding.

The court examined the rules governing substituted service, specifically rules 6.10(1), 6.10(1.1) and (1.2), 7.02, 7.05, and 7.09, to determine the appropriateness of the proposed methods. The court considered the probability of the substituted service methods reaching the defendant, focusing on whether the methods involving email and email links were likely to bring the writ and statement of claim to the defendant's attention. The plaintiff argued that the methods were appropriate, but the court found that the evidence presented did not establish a reasonable probability that the defendant would be notified of the proceeding. As a result, the application for substituted service was refused at that time, with the court adjourning the matter to allow further steps to be taken and additional evidence to be presented.

The court's decision highlighted the stringent requirements for substituted service, particularly in cases where the defendant's location is unknown. The plaintiff was required to demonstrate that the proposed methods had a reasonable chance of bringing the writ and statement of claim to the defendant's attention. Without sufficient evidence to support this claim, the court could not grant the application for substituted service. The matter was adjourned to permit the plaintiff to gather further evidence and potentially propose alternative methods of service.