Zoochore Pty Ltd v The Contaminated Sites Committee

[2016] WASC 307

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   ZOOCHORE PTY LTD -v- THE CONTAMINATED SITES COMMITTEE [2016] WASC 307

CORAM:   PRITCHARD J

HEARD:   13 SEPTEMBER 2016

DELIVERED          :   13 SEPTEMBER 2016

PUBLISHED           :  22 SEPTEMBER 2016

FILE NO/S:   CIV 1940 of 2016

BETWEEN:   ZOOCHORE PTY LTD

First named Applicant

JEREMY FRANCIS O'DRISCOLL
Second named Applicant

AND

THE CONTAMINATED SITES COMMITTEE
Respondent

RAFET ALTINTAS
First named Other Party

HAVAGUL ALTINTAS
Second named first Other Party

DENIZ  ALTINTAS
Third named first Other Party

PETER ROWLAND MURRAY
First named second Other Party

ANN MURRAY
Second named second Other Party

LYLE PTY LTD
First named third Other Party

KIWI BLUE PTY LTD
Second named third Other Party

BP AUSTRALIA PTY LTD
Fourth Other Party

WEST KIMBERLY FUELS PTY LTD
Fifth Other Party

CRESTBROOK INVESTMENTS PTY LTD
Sixth Other Party

Catchwords:

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

Legislation:

Rules of the Supreme Court 1971 (WA), O 72 r 4(1)

Result:

Orders for substituted service made

Category:    B

Representation:

Counsel:

First named Applicant               :        Mr A J Papamatheos

Second named Applicant         :        No appearance

Respondent:         No appearance

First named Other Party               :        No appearance

Second named first Other Party     :        No appearance

Third named first Other Party     :        No appearance

First named second Other Party     :        No appearance

Second named second Other Party  :        No appearance

First named third Other Party     :        No appearance

Second named third Other Party     :        No appearance

Fourth Other Party               :        No appearance

Fifth Other Party               :        No appearance

Sixth Other Party               :        No appearance

Solicitors:

First named Applicant               :        HFM Legal

Second named Applicant                   :        No appearance

Respondent:        No appearance

First named Other Party               :        No appearance

Second named first Other Party     :        No appearance

Third named first Other Party     :        No appearance

First named second Other Party     :        No appearance

Second named second Other Party  :        No appearance

First named third Other Party     :        No appearance

Second named third Other Party     :        No appearance

Fourth Other Party               :        No appearance

Fifth Other Party               :        No appearance

Sixth Other Party               :        No appearance

Case(s) referred to in judgment(s):

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

PRITCHARD J: 

(This judgment was delivered extemporaneously on 13 September 2016 and has been edited from the transcript)

1. This is an application by the Applicants for substituted service on the Third‑Named First Other Party, Mr Denis Altintas, in the application for judicial review in these proceedings.[1] 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.

   [1] Other members of Mr Altintas' family are also parties to the judicial review application:  the First‑Named First Other Party and the Second‑Named First Other Party.

2. The applicants are required to effect personal service of the judicial review application on Mr Altintas because he has been made a party to the judicial review application.[2]

   [2] Rules of the Supreme Court 1971 (WA), O 56 r 3(b).

3. The Applicants rely on a number of affidavits in support of the application for substituted service, namely, the affidavits of Michael Terrence Simon Rennie, sworn 22 August 2016, 2 September 2016 and 8 September 2016, and the affidavit of Andrew Stewart Steven, sworn 7 September 2016.

4. The inquiries required by O 72 r 4 are, as Edelman J observed in Attorney General for Western Australia (WA) v Lashansky,[3] twofold.  First, the Court is required to consider 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'.

   [3] Attorney General for Western Australia (WA) v Lashansky [2014] WASC 42.

5. Insofar as the question of impracticability is concerned, the affidavits on which the Applicants rely indicate that there have been numerous attempts to serve Mr Altintas at his address on the electoral roll and to obtain information as to his contact details or whereabouts.  Specifically, there have been three unsuccessful attempts to serve Mr Altintas personally at his address on the electoral roll.  There have also been attempts to contact his father on four occasions to obtain information in relation to Mr Altintas' whereabouts.  His mother has been contacted on two occasions for the same purpose.  There has also been contact with a person who appears to be a representative of the Altintas family on two occasions, again in an attempt to ascertain Mr Altintas' whereabouts.  As a result of communications with the latter person, it is apparent that the Altintas family (and presumably Mr Altintas himself) do not wish to be involved in the judicial review application.

6. The inquiries that have been made as to Mr Altintas' whereabouts have resulted in the provision of inconsistent information being provided by his family members as to his whereabouts.  It has been suggested on different occasions that Mr Altintas is either overseas, in Melbourne or otherwise away from Perth, and the information given at the same time has been that they do not know when he will be back.

7. Having regard to all of those circumstances, I am satisfied that the service of the judicial review application on Mr Altintas is impracticable.

8. I turn, then, to the second inquiry, which is the form by which substituted service should take.  The order proposed by the Applicants proposes that a copy of the judicial review application, together with a covering letter, be sent by pre‑paid post Mr Altintas' address on the electoral roll and to an additional address at which it appeared he may have once, or on occasion, been located, and is a property of which Mr Altintas is the registered proprietor (and which is the subject of the present proceeding).  The Applicants propose that the judicial review application and covering letter also be sent to an email address which it appears Mr Altintas uses or has access to.

9. Having regard to those several means of drawing the judicial review application to Mr Altintas' attention, I am satisfied that service in that way will, in due course, bring the application to Mr Altintas' attention.  I note that it is proposed that the covering letter which should accompany the judicial review application will request ‑ insofar as the application is served at Mr Altintas' electoral roll address, which happens to be the home of his parents ‑ that his parents draw the judicial review application and associated documentation to Mr Altintas' attention.  The only other matter to which I should make reference is that having reached this conclusion, it is not necessary for me to address the matters referred to by Edelman J in Lashansky at [13].

10. In all of those circumstances, therefore, it is appropriate to make orders that are requested by the Applicants.