Ainsworth v Redd [2024] NSWSC 988 | Case summary

Submissions and determination

I now turn to the submissions put by Mr Mostafa, who appears for the Plaintiffs, in support of the application for leave under UCPR r 11.8AA. Mr Mostafa points out that the application is brought because more than 42 days have passed, since, on the Plaintiffs' case, Mr Wu was served, and Mr Wu has not filed an appearance. Mr Mostafa draws attention, by reference to authority, to the matters that are relevant to the Court's determination whether to grant leave under UCPR r 11.8AA, namely whether Mr Wu was properly served with the Originating Process and other relevant documents; whether the Plaintiffs have an arguable case, being one that would be sufficient to survive an application for summary judgment, a matter which the Court has previously addressed; and whether the Court is not a clearly inappropriate forum. The first of these matters which will require substantive attention today, and the second and third can be dealt with briefly.
Mr Mostafa refers to a further question whether the claims in the Originating Process fall within Schedule 6 to the UCPR, but he points out that, here, service was permitted by leave under UCPR r 11.5 on the premise, adopted probably for more abundant caution, that service would not be allowed under Schedule 6. On that basis, that further question does not here arise.
Mr Mostafa then turns to the question whether Mr Wu was properly served, which raises the question of the requirements for personal service under UCPR r 10.21, to which I referred above. Mr Mostafa notes that the first limb of r 10.21(1) permits service by leaving a copy of the document with the person. The second limb of that rule, to which I address below, deals with the position where the person does not accept the copy of that document, and requires that a copy of the document to be put down in the person's presence and the person be told the nature of the document. Mr Mostafa points out, and the authorities plainly establish that, if it is not shown that a recipient declined or failed to accept the document, then it is merely necessary to leave the document with that person: Ainsworth v Redd (1990) 19 NSWLR 78 at 89.
Mr Mostafa also points to the observation of Clarke JA, in Ainsworth at 89-90 that leaving a copy of the document with a person does not require that it be placed in his or her hands, or that he or she be seen to take hold of the document and that, if there is no indication that the person declines to accept the document, then it is sufficient that it be left with him or her. Clarke JA there also recognised that, at least in some circumstances, a document can be left with a person who did not actually take the document. Mr Mostafa fairly also refers to the observations of Kirby ACJ in that case, which identified the possibility that a person walking away, after refusing to pick up the document that had been set down in their presence, would not amount to leaving the document with that person within the first limb of this rule, and would require that the person had been told the nature of the document within the second limb of the rule.
Mr Mostafa also draws attention to the discussion of these principles by Batt J in Australia and New Zealand Banking Group Ltd v Rostkier (unreported), 2 June 1991, and the position here has some similarity with that addressed in that case. It is plainly not shown that Mr Wu took any affirmative step to accept the relevant documents, whether by taking them into his hand or by acknowledging the fact of service upon him. If the example adopted by Kirby ACJ in Ainsworth was applied, then it might be said that Mr Wu's leaving the room amounted to non-acceptance of the relevant documents. However, it seems to me that the position is more finely balanced than that to which Kirby ACJ referred in Ainsworth because the documents had been placed at Mr Wu's feet; he had been told both that he had been served and had that he had been officially served; he had not responded to that statement by expressly refusing service, or by taking issue with it; and it was only when Mr Carpenter took out his phone and began to take a video that Mr Wu stepped around the documents and walked out of the room. It seems to me that here, by analogy with the position in Rostkier, and particularly where the attempt to deliver the documents takes place in a room within Mr Wu's business premises, Mr Wu's conduct in walking out of that room rather than remaining within it is arguably equivocal. I also accept, however, that the facts of that conduct have something in common with the facts of Primelife Corporation Ltd v Newpark Pty Ltd [2003] VSC 106 to which Mr Mostafa also refers, although the circumstance there are potentially distinguishable so far as service was there sought to be effected in a public place.
I would here leave open the possibility that service has been effected upon Mr Wu within the first limb of r 10.21(1) by leaving a copy of the document with him, where he had taken no step to communicate that he did not accept that document. It is preferable, given the significance of the relief sought against Mr Wu, that I do not determine the matter on that basis, where I am comfortably satisfied that personal service has been effected within the second limb of r 10.21.
The second limb or r 10.21 applies, as I have noted above, where a person does not accept the relevant documents and requires that the documents be put down in the person's presence, as plainly occurred here, and that the person be told the nature of the document. Mr Mostafa draws attention to two cases where service was effected under that limb of r 10.21(1). In Primelife, to which I referred above, Nettle J held at [26] that service within that second limb was effected by saying that the person had documents for service, holding them out uncovered, and launching them into the path of the person to be served so that he walked over them and proclaiming "you are served". Here, Mr Carpenter's evidence establishes that he identified himself as a process server, plainly indicating that he was there to serve relevant documents, and (by implication) that he was there to serve court documents; he provided the documents in an open plastic cover, although I recognize that not all of the documents could be read at the same time by his doing so; he then placed the documents at Mr Wu's feet; and, as I have noted above, he then emphasised, twice, that Mr Wu had been served with the relevant documents.
Mr Mostafa also refers to the decision in Lawindi v Elkateb [2001] 187 ALR 479; [2001] FCA 1527 to which Nettle J had in turn referred in Primelife. In that case, Stone J (as her Honour then was) had noted that a similar rule of the Federal Court Rules required that the person be informed of the "nature" of the document and that requirement was "not very demanding", and found that that requirement was satisfied where it was likely that the person would have been able to deduce the nature of the documents served from the past dealings with the applicant in the Court. Here, the existence of past dealings in respect of the contempt application is, it seems to me, a very significant matter. Mr Mostafa notes, in submissions, and I need not repeat, the several attempts which had been made to serve Mr Wu documents relating to this application. Documents relating to the application have also been provided to solicitors acting for Mr Wu or his companies or both, on more than one occasion, although those solicitors have not had instructions to accept service of those documents for Mr Wu. On at least one occasion, Counsel retained either by Mr Wu or his companies has appeared in Court at a directions hearing in respect of this application. It is plain enough that Counsel would then have understood the nature of the application and I readily infer that the nature of the application was then communicated by Counsel, or the solicitors instructing Counsel, to Mr Wu. On 13 March 2024, a solicitor in a firm acting for Mr Wu's companies requested and was provided with copies of documents relating to the application, although that firm again indicated that he did not have instructions to act on behalf of Mr Wu, and I infer that the solicitor who obtained those documents then at least advised Mr Wu of their nature.
Mr Mostafa submits, and I accept, that it is clear that Mr Wu must have known on 5 June 2024 that a contempt application had been commenced against him in this Court, and that the Plaintiffs had been seeking, for some considerable time, to serve him with documents relating to the contempt application. It seems to me that, when Mr Carpenter announced he was a process server; placed documents within a plastic cover at Mr Wu's feet; and then announced that Mr Wu had been served and, further, that he had "officially been served", Mr Wu would undoubtedly have understood the nature of the documents that were served upon him, and not only that they were Court documents but also that they were Court documents that related to this contempt application.
In these circumstances, I am comfortably satisfied that personal service was effected on Mr Wu within the second limb of r 10.21(1). In the particular circumstances, given Mr Wu's knowledge of the circumstances of this application, obtained in the manner that I have set out above, the statement that Mr Wu had been served with relevant documents made by Mr Carpenter plainly communicated the nature of those documents to Mr Wu.
Mr Mostafa points out that, at the time of personal service of the documents upon Mr Wu, they contained a notice to Mr Wu for the purposes of UCPR r 11.7, which identified the Court's jurisdiction in respect of the claims against him; the grounds alleged by the plaintiff to found the jurisdiction, and his right to challenge service of the Originating Process or the jurisdiction of the Court or to file a conditional appearance. Mr Mostafa points out, fairly, that that document would likely not have been visible to Mr Wu, so far as the documents were contained within a plastic cover which he did not open at least in the presence of the process server. Mr Mostafa submits that that is not an obstacle to the grant of leave to proceed under r 11.8A, and I accept that submission. Here, given Mr Wu's knowledge of the matters relating to the contempt application, derived in the manner to which I have referred above, he was plainly aware of the scope of the Court's jurisdiction in respect of the claim against him, and with the matters alleged by the Plaintiffs to found that jurisdiction. I infer that, where he and/or his associated companies have been represented by solicitors throughout, although they have not accepted service of the application against him, he would also have been informed of his rights in respect of the Originating Process. In these circumstances, I do not consider that, even if Mr Wu did not read the notice under r 11.7 which was contained with the relevant documents, that would be reason not to grant leave under UCPR r 11.8AA where the prerequisite to the grant of that leave is the service of the Originating Process on Mr Wu, and I have found that that occurred.
The remaining issues in this application are whether the Plaintiffs have an arguable case, being one that would survive an application for summary judgment. I am comfortably satisfied of that matter, having regard to the affidavits on which the Plaintiffs again rely in respect to the application today, and the Court's findings in the earlier judgment which granted leave to serve the contempt application outside the jurisdiction. I am also comfortably satisfied that the Court is not a clearly inappropriate forum for this application, and indeed is a clearly appropriate forum for this application, where the application arises from an alleged contempt in proceedings that were determined in this Court.

Ainsworth v Redd

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Judgment (6 paragraphs)

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Cases Cited (3)