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.)

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.
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].
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].
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…

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.

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Details

Case: [2014] WASC 367
Decision Date: 3 OCTOBER 2014

CaseChat Overview and Summary

The case of Visa Global Logistics Pty Ltd v SELLARO involved the plaintiff, Visa Global Logistics, seeking substituted service on the defendant, SELLARO. The matter was heard in the Supreme Court of New South Wales, with the court addressing the issue of whether it was impracticable to effect personal service on SELLARO and, if so, what form of substituted service was appropriate. Visa Global Logistics sought substituted service due to difficulties in locating SELLARO, with the application being supported by affidavit evidence regarding the steps taken to effect personal service.

The court was required to determine whether the plaintiff had demonstrated that it was impracticable to effect personal service on the defendant. This involved examining the affidavit evidence provided by the plaintiff, assessing the reasonableness of the steps taken to locate the defendant, and considering whether any alternative methods of service would be effective. Additionally, the court needed to decide on the appropriate form of substituted service if it was found that personal service was impracticable. This included evaluating whether service by post, publication, or some other method was suitable and in line with the relevant legislation and court rules.

The court found that the plaintiff had adequately demonstrated that it was impracticable to effect personal service on SELLARO, based on the evidence presented in the affidavit. The court was satisfied that the steps taken to locate the defendant were reasonable and that further attempts to serve the defendant personally would be futile. Consequently, the court granted the application for substituted service and ordered that the defendant be served by post. This decision was made in accordance with the relevant provisions of the Civil Procedure Act 2005 (NSW) and the Supreme Court Rules 2000 (NSW), ensuring that the substituted service was conducted in a manner that was fair and reasonable in the circumstances.

Orders