Before the Court today is a notice of motion filed 8 June 2018 seeking orders allowing substituted service on the defendant, Aussie Earthmovers Pty Ltd, of the summonses in each of two Class 5 proceedings. Aussie Earthmovers Pty Ltd is charged with two offences pursuant to s 144AA(2) of Protection of the Environment Operations Act 1997 (NSW) ('POEO Act') that it supplied information about waste to another person in the course of dealing with the waste, being information that it knew was false or misleading in a material respect.
In separate but related proceedings, Paul Mouawad, who as explained below was formerly an employee of Aussie Earthmovers Pty Ltd, is charged with the same offences. The notice of motion before the Court today deals only with the service of documents upon Aussie Earthmovers Pty Ltd.
By virtue of cl 5.2(1) of the Land and Environment Court Rules 2007 (NSW), Pt 75 of the Supreme Court Rules 1970 (NSW) ('SC Rules') applies, as far as applicable, to proceedings in Class 5 of this Court's jurisdiction. Pursuant to Pt 75 r 9(2) of the SC Rules, a summons commencing Class 5 proceedings must be personally served on the defendant.
Part 75 r 3 of the SC Rules provides additional rules which apply in respect of proceedings specified in "the Third Schedule to the Act (except clause (d) of that Schedule) and to proceedings to which Division 2 [of Pt 75 of the SC Rules] applies". Proceedings in Class 5 in this Court fit the latter description by virtue of the operation of s 41 of the Land and Environment Court Act 1979 (NSW), which provides "Part 5 of Chapter 4 of the Criminal Procedure Act 1986 applies to proceedings in Class 5 of the Court's jurisdiction", and Pt 75 r 4 of the SC Rules which provides that Div 2 of Pt 75 of the SC Rules "applies to proceedings in the Court under the Part 5 of Chapter 4 of the Criminal Procedure Act 1986 (in this Division called the subject Act)".
Part 75 r 3(1) of the SC Rules relevantly provides:
(1) The following provisions of the Uniform Civil Procedure Rules 2005 apply, so far as applicable, to proceedings specified in the Third Schedule to the Act (except clause (d) of that Schedule) and to proceedings to which Division 2 applies:
…
(d) Part 10 (service of documents generally), other than rules 10.7 and 10.16,
…
Accordingly, Pt 10 of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR'), apart from rr 10.7 and 10.16, applies to proceedings in Class 5 of this Court's jurisdiction. Rule 10.14 allows the Court to make orders for substituted service:
10.14 Substituted and informal service generally (cf SCR Part 9, rules 10 and 11; DCR Part 8, rules 5 and 16; LCR Part 7, rules 5 and 16)
(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.
(2) An order under this rule may direct that the document be taken to have been served on the person concerned on the happening of a specified event or on the expiry of a specified time.
(3) If steps have been taken, otherwise than under an order under this rule, for the purpose of bringing the document to the notice of the person concerned, the court may, by order, direct that the document be taken to have been served on that person on a date specified in the order.
(3A) An application for an order under this rule must be supported by an affidavit by the applicant that includes:
(a) a statement as to the applicant's knowledge of the whereabouts of the person to be served, and
(b) a statement as to any communications that have occurred between the applicant and the person to be served since the cause of action in the proceedings arose (including any communications by telephone, fax or electronic mail).
(4) Service in accordance with this rule is taken to constitute personal service.
In order to satisfy the requirements of rr 10.14(1) and (3A), the prosecutor relies on an affidavit of Ryan Verzosa, dated 8 June 2018. Annexed to the affidavit is an ASIC Company Extract obtained by the prosecutor in respect of the defendant. Based on the Company Extract, Mr Verzosa affirms he is aware of the following:
1. The current registered office of Aussie Earthmovers Pty Ltd;
2. The principal place of business of Aussie Earthmovers Pty Ltd;
3. That there are no current directors for Aussie Earthmovers Pty Ltd but that the most recent director was Amal Mouawad; and
4. That there are no current company secretaries for Aussie Earthmovers Pty Ltd but that the most recent company secretary was Amal Mouawad.
Mr Verzosa additionally affirms that he is aware that Ms Mouawad's son, Paul Mouawad, who is the defendant in the related Class 5 proceedings, and that Mr Mouawad, although not presently a company director, was previously employed by Aussie Earthmovers Pty Ltd and has acted as its signatory in the past.
The prosecutor submits, and I accept, that there are four methods of effecting personal service upon a corporation:
1. By personally serving the document on a principal officer of the corporation (UCPR r 10.22(a));
2. By leaving it at, or posting it to, the company's registered office (UCPR r 10.22(b) and Corporations Act 2001 (Cth) ('Corporations Act') s 109X(1)(a));
3. By delivering a copy of the document personally to a director of the company (UCPR r 10.22(b) and Corporations Act s 109X(1)(b)); and
4. By serving the document on a person who "keeps house" in circumstances where the person attempting service cannot lawfully or practicably obtain access to the relevant premises (UCPR r 10.26(1)).
Mr Verzosa affirms that, on 4 April 2018, he arranged for a box containing a copy of the two summonses (one in respect of each offence with which the defendant is charged) to be posted to the registered office of Aussie Earthmovers Pty Ltd. On or about 15 May 2018, these summonses were returned, marked "return to sender" by Australia Post.
Since 15 May 2018, Mr Verzosa affirms that the following attempts to effect service of the summonses on Aussie Earthmovers Pty Ltd have been made:
1. On or about 18 May 2018, the prosecutor contacted the business holder of the accounting firm which was listed as the registered office of Aussie Earthmovers Pty Ltd, who advised the firm no longer operates or has access to the premises and was not therefore in a position to accept service there;
2. On or about 24 May 2018, the prosecutor contacted Mr Mouawad, who advised he did not accept service of the summonses on behalf of Aussie Earthmovers Pty Ltd; and
3. On 31 May 2018 and 1 June 2018, Mr Verzosa made further contact with Mr Mouawad, who advised he was no longer employed by Aussie Earthmovers Pty Ltd and declined to accept service on its behalf.
In those circumstances, and there being no current directors or company secretaries of Aussie Earthmovers Pty Ltd, the prosecutor requests that I make orders allowing for substituted service, the methods of service outlined at [9] above not being available.
The proposed alternative method of service is personal service upon either Mr Mouawad, being a former representative and signatory of the company, or Ms Mouawad, being the company's most recent director and company secretary.
In the circumstances, I am satisfied that the summonses cannot be practicably served upon Aussie Earthmovers Pty Ltd, and that this precondition of the exercise of UCPR r 10.14(1) is therefore met in the present case. I am further satisfied that the affidavit of Mr Verzosa meets the requirements of UCPR r 10.14(3A).
Therefore, the Court makes the orders sought in the motion.
[3]
Orders
The Court orders that:
1. Service of the Court documents in proceedings numbered 00104771 and 00104773 of 2018 be deemed to be effective service on the defendant if served in the following manner:
1. In the case of any documents requiring to be served personally on Aussie Earthmovers Pty Ltd, by personally serving the Court documents on either of the following:
1. Amal Mouawad of 52 Gladstone Street, North Parramatta NSW 2151; or
2. Paul Mouawad (also known as Boulos Isaac) of 19 Settlers Close, Castle Hill NSW 2154.
1. In the case of any other Court documents requiring to be served on Aussie Earthmovers Pty Ltd, by posting the documents to either of the following:
1. Amal Mouawad of 52 Gladstone Street, North Parramatta NSW 2151; or
2. Paul Mouawad (also known as Boulos Isaac) of 19 Settlers Close, Castle Hill NSW 2154.
[4]
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Decision last updated: 24 September 2018