Application of these principles to the facts of this case
- A feature of particular relevance when service of the initiating process is challenged in defamation proceedings is the requirement for a Concerns Notice to be served more than 28 days before the statement of claim can be filed.
- Although the second defendant relies upon an affidavit that she has sworn and upon written submissions, she did not refer at all to the Concerns Notice dated 18 April 2024, which I note is Annexure E to the statement of claim. It was only when I drew Annexure E to her attention that she told the court that she did not recall receiving this document. Nor does the second defendant provide any information to the court that she knew about service of a concerns notice and/or the statement of claim being served on the first defendant.
- While I would have been prepared to accept that, given the conflict in the competing versions of events from the process server in the two affidavits, the second defendant may not have received the statement of claim in a timely fashion, and possibly not at all, her own credibility must suffer by reason of these omissions. I am not prepared to accept that a solicitor's registered letter failed to reach her when delivered to her correct home address. I also consider it is more likely than not that she knew the first defendant had received a concerns notice addressed to him (Annexure D to the statement of claim) and that she also knew that he had been served with a statement of claim which, since it identified her as the second defendant, would be more likely than not to have been of interest to both of them. In those circumstances, I am satisfied that the document for which is personal service was required has, by reason of these other factors, come to the notice of the second defendant, the person for whom it was intended (Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2006] NSWCA 259 at [58]).
- Failure to comply punctiliously with obligations such as personal service is the kind of technicality that appears more important to the justice of the claim than it really is. Looking at the whole of the evidence, I am satisfied that, although the second defendant was not served personally with the statement of claim, it was delivered to an address which was visited on a regular basis by the second defendant and where it was more likely than not to be seen by either family members (and/or their carers). In light of the service of the Concerns Notices on both defendants, and service of the statement of claim on the first defendant, the statement of claim can hardly have been an unexpected document.
- Both defendants addressed me in strong terms as to the unsatisfactory nature of the inconsistent accounts given by the process server of exactly what was said on the occasion that he went to the address at which the second defendant's parents still reside.
- However, even if I were satisfied that service had not been effected properly, this would not be a sufficient basis for the plaintiff's claim to be dismissed on a permanent basis against the second defendant. All that would occur would be that the plaintiff's solicitor would either file an amended pleading in these proceedings or commence separate proceedings against the second defendant which, subject to any requirement to comply with s 23 of the Act, would result in the proceedings continuing as before. Similarly, if I had not been satisfied that the Concerns Notice had been served, the plaintiff could have served a fresh notice as well.
- The second defendant also drew my attention to the requirement that a statement of claim must be served as soon as practicable (UCPR r 10.1) and that a statement of claim, to be valid, must be served within 28 days of filing. In the present case, where the plaintiff and his solicitor were relying upon affidavits of service for a process server, as opposed to failing to serve documents in time, these rules are not applicable.