Waverley Council v Bobolas (No 2)

[2013] NSWLEC 130

Land and Environment Court

New South Wales

Medium Neutral Citation:

Waverley Council v Bobolas (No 2) [2013] NSWLEC 130

Hearing dates:

26 July, 9 August 2013

Decision date:

09 August 2013

Jurisdiction:

Class 4

Before:

Biscoe J

Decision:

(1) Pursuant to Pt 10, r 10.14 of the Uniform Civil Procedure Rules 2005 service of the Summons originating these proceedings on the first, second and third respondents is to be effected by:

(a) causing the Summons together with a copy of the applicant's notice of motion filed on 19 July 2013, the affidavits in support of the motion and these orders to be placed in a sealed clear soft plastic pocket and affixed to the outside of the double front gates of the property at 19 Boonara Avenue, Bondi NSW 2026;

(b) posting the Summons by ordinary prepaid post to each Respondent, at the address, 19 Boonara Avenue, Bondi NSW 2026.

(2) Subsequent service of any documents in the proceedings may be effected by posting the same in a prepaid envelope addressed to the Respondents at 19 Boonara Avenue, Bondi NSW 2026.

(3) Costs of the applicant's notice of motion filed on 19 July 2013 are reserved.

Catchwords:

PRACTICE AND PROCEDURE - substituted service.

Legislation Cited:

Uniform Civil Procedure Rules 2005 Pt 10, r 10.14

Cases Cited:

Waverley Council v Bobolas [2013] NSWLEC 119

Category:

Procedural and other rulings

Parties:

Waverley Council (Applicant)
Mary Bobolas (First Respondent)
Elena Bobolas (Second Respondent)
Liana Bobolas (Third Respondent)

Representation:

COUNSEL:
K Webber, solicitor, 26 July 2013,
A Pearman, 9 August 2013 (Applicant)
N/A (First Respondent)
E Bobolas, in person, 26 July 2013 (Second Respondent)
L Bobolas, in person, 26 July 2013 (Third Respondent)
SOLICITORS:
Wilshire Webb Staunton Beattie (Applicant)
N/A (Respondents)

File Number(s):

40466/13

EX TEMPORE Judgment

1. This is a motion by the applicant council for substituted service of the summons on the three respondents pursuant to r 10.14(1) of the Uniform Civil Procedure Rules 2005 (UCPR), which provides.

10.14 Substituted and informal service generally

(1) If a document that is required or permitted to be served on a person in connection with any proceedings:

(a) cannot practicably be served on the person, or

(b) cannot practicably be served on the person in the manner provided by law,

the court may, by order, direct that, instead of service, such steps be taken as are specified in the order for the purpose of bringing the document to the notice of the person concerned.

...

(4) Service in accordance with this rule is taken to constitute personal service.

1. The background is recounted in my reasons for judgment on 26 July 2013: Waverley Council v Bobolas [2013] NSWLEC 119. I commenced to hear the motion on that occasion. Although such motions are normally heard ex parte, the second and third respondents appeared and contested it. It was stood over part heard to today because they said they wished to cross-examine James Twigg, a process server whose evidence the council proposed to read in support of the motion and who was not present on that occasion. Today, however, there was no appearance by those respondents and I proceeded with the hearing of the motion in their absence.

1. In support of the motion, the Council read the affidavits of James Twigg of 18 July and 22 July 2013, Kendall Webber of 26 July 2013 and Michele Silver of 17 July 2013. The main evidence was from Mr Twigg who said he attended the subject premises, where the respondents reside, a number of times but was unable to serve them, and that large accumulations of rubbish and waste at the premises impeded his attempts to locate and serve them. He said he had prior experience of the respondents, whilst he was observing them, ducking under or hiding in such accumulations at the premises. The council also led evidence from Mr Twigg that there is no letter box at the premises.

1. Impracticability lies below impossibility and above inconvenience and is a matter of impression. On the evidence, my impression is that the summons cannot practicably be served on the respondents personally as provided by law. Accordingly, I think that an order for substituted service should be made.

1. The Court makes the following orders:

(1) Pursuant to Pt 10, r 10.14 of the Uniform Civil Procedure Rules 2005 service of the Summons originating these proceedings on the first, second and third respondents is to be effected by:

(a) causing the Summons together with a copy of the applicant's notice of motion filed on 19 July 2013, the affidavits in support of the motion and these orders to be placed in a sealed clear soft plastic pocket and affixed to the outside of the double front gates of the property at 19 Boonara Avenue, Bondi NSW 2026;

(b) posting the Summons by ordinary prepaid post to each Respondent, at the address, 19 Boonara Avenue, Bondi NSW 2026.

(2)   Subsequent service of any documents in the proceedings may be effected by posting the same in a prepaid envelope addressed to the respondents at 19 Boonara Avenue, Bondi NSW 2026.

(3)   Costs of the applicant's notice of motion filed on 19 July 2013 are reserved.