Visa Global Logistics Pty Ltd v SELLARO

[2014] WASC 367

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   VISA GLOBAL LOGISTICS PTY LTD -v- SELLARO [2014] WASC 367

CORAM:   PRITCHARD J

HEARD:   16 SEPTEMBER 2014

DELIVERED          :   16 SEPTEMBER 2014

PUBLISHED           :  3 OCTOBER 2014

FILE NO/S:   CIV 1876 of 2014

BETWEEN:   VISA GLOBAL LOGISTICS PTY LTD

Plaintiff

AND

RAFFAELE SELLARO
First Defendant

SHANNON HARBRON
Second Defendant

JANICE DHARAN
Third Defendant

THINK GLOBAL LOGISTICS PTY LTD
Fourth Defendant

Catchwords:

Practice and procedure - Application for substituted service - Whether impracticable to effect personal service - Appropriate order for substituted service

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Orders for substituted service made

Category:    B

Representation:

Counsel:

Plaintiff:     Mr J W Parkinson

First Defendant              :     No appearance

Second Defendant         :     No appearance

Third Defendant            :     No appearance

Fourth Defendant           :     No appearance

Solicitors:

Plaintiff:     K & L Gates

First Defendant              :     Rockwell Olivier

Second Defendant         :     No appearance

Third Defendant            :     Kott Gunning Lawyers

Fourth Defendant           :     Santone Lawyers

Case referred to in judgment:

Attorney General for Western Australia v Lashansky [2014] WASC 42

PRITCHARD J:

(This judgment was delivered extemporaneously and has been edited from the transcript.)

1. This is an application by the plaintiff by motion dated 15 September 2014 for substituted service on the second defendant, Mr Harbron. The application is supported by an affidavit of Mr Stephen, sworn 11 September 2014. The application is made pursuant to O 72 r 4(1) of the Rules of the Supreme Court 1971 (WA), which provides as follows:

   4.Substituted service

   (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. As Edelman J observed in Attorney General for Western Australia v Lashansky,[1] there are two inquiries required by O 72 r 4 before a requirement for personal service can be substituted. The first is 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.

   [1] Attorney General for Western Australia v Lashansky [2014] WASC 42 [3] ‑ [4].

3. I turn first to the question of impracticability.  As Edelman J observed in Lashansky, the requirement of impracticability focuses attention upon the means which have been taken to effect personal service and whether in the circumstances of the case, having regard to the means taken, personal service is now impracticable.[2]  Having regard to the matters set out in the affidavit of Mr Stephen, I am satisfied that it is impracticable for Mr Harbron to be served personally in this case.

   [2] Attorney General for Western Australia v Lashansky [2014] WASC 42 [11].

4. The steps which have been taken by the plaintiff to attempt service on Mr Harbron included five attempts to serve Mr Harbron at premises where he was understood to have resided.  It appears that those premises were occupied by Mr Harbron’s father.  However, upon inquiry by the process server, Mr Harbron's father did not provide information regarding the precise whereabouts of Mr Harbron or his contact details.  In addition, the process server attempted to make some inquiries at the premises where it was believed that Mr Harbron may be working or may have attended, with a view to effecting service of the writ on Mr Harbron at those premises.  They also proved unsuccessful.

5. According to the information provided to the process server by Mr Harbron's father, Mr Harbron presently works in 'a remote location within Western Australia'.[3]  There is no other information available from Mr Harbron's father as to when he will be returning to Perth.

   [3] Affidavit of Mr Stephen sworn 11 September 2014 [4].

6. In all of those circumstances, I am satisfied that service of the writ on Mr Harbron is impracticable.

7. I turn then to the second inquiry, which is the form by which substituted service should take.  The order proposed by the plaintiff is that the writ be served on Mr Harbron's parents at their residential premises and that that be treated as good and sufficient service of the writ on Mr Harbron.  I note the observations made by Edelman J in Lashansky at [13]. I proceed in this case on the basis that substituted service will, having regard to the information the plaintiff has put before the court, take place where the writ of summons is likely to be brought to Mr Harbron's attention. It is not necessary to decide the other matters referred to by Edelman J Lashansky at [13] in this case.

8. Having regard to the information in the affidavit, I am satisfied that if the writ of summons is served on Mr Harbron's father at the residential premises referred to in the affidavit, that that will in due course bring the writ of summons to the attention of Mr Harbron.

9. It would be appropriate that service of the writ on Mr Harbron's father be accompanied by a covering letter requesting that Mr Harbron's father provide the relevant documents to Mr Harbron at the first available opportunity, together with a copy of these reasons.