Rules Governing an Order for Substituted Service
13Rule 10.14 of the UCPR provides as follows:
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.
(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.
(4) Service in accordance with this rule is taken to constitute personal service.
14The Court's power to direct substituted service depends on the impracticability of effecting ordinary service in accordance with the UCPR. Typically, but not exclusively, such orders are made because of a justified apprehension that a party may, or is, evading service, or will leave the jurisdiction (Alstom Ltd v Sirakas [2010] NSWSC 669 at [43]-[46]); or may dispose of assets that are the subject of the proceedings.
15However, substituted service is not a means of overcoming the territorial limits of a court's jurisdiction (Laurie v Carroll (1958) 98 CLR 310 and Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268 at [31] per Macfarlan JA).
16Thus if a defendant leaves the jurisdiction before the commencement of the proceedings, there is generally no foundation for an order for substituted service (Laurie v Carroll).
17An exception to this rule is provided for in Pt 11 of the UCPR. Part 11.2(1), in particular, states that an originating process may be served outside Australia in the circumstances referred to in Sch 6 of the UCPR. These circumstances relevantly for present purposes include: if the proceedings are founded on a cause of action arising in New South Wales ((a)); if the subject-matter of the proceedings, so far as concerns the person to be served, is property in New South Wales ((j)); and if the proceedings are for an injunction as to anything to be done in New South Wales or against the doing of any act in New South Wales ((n)). Any or all of these circumstances were applicable to the facts of the present application.
18It was therefore on this basis that on 15 April 2014, the Court granted the substituted service order in the following terms:
1. leave is granted pursuant to r 10.14 of the Uniform Civil Procedure Rules 2005 to serve the summons, any application for interlocutory relief together with all evidence in support of any such application, on the second and third defendants by email at robbins_xu@hotmail.com by 4.00pm on 24 April 2014. The Summons is to bear the following notation:
"it is intended that the summons and accompanying documents are to be served on the second and third defendants outside Australia (r 11.3 of the Uniform Civil Procedure Rules 2005 (NSW))."
2. the return date of the summons is amended to 30 April 2014.
3. any notice of motion or amended notice of motion for interlocutory relief against the first, second or third defendant is to be filed and served by 24 April 2014.
4. all notices of motion for interlocutory relief referred to above are stood over for final hearing to 30 April 2014 at 9.30am before the Duty Judge.
5. the plaintiff is to pay the first defendant's costs of today.
6. liberty to restore on 48 hours notice.
19It did so, however, in error, believing that Pt 11 applied to the Court. It does not and the Court, a superior court of record but one of limited statutory jurisdiction as defined in ss 16 to 21 of the Land and Environment Court Act 1979 (see National Parks and Wildlife Service v Stable Perisher Pty Ltd (1990) 20 NSWLR 573 at 574-575 and 577 per Gleeson CJ) (cf the District Court in Flo Rida), had no jurisdiction to make the order it did (there being no other source of jurisdiction available to it to do so).
20Parts 11.1 and 11.2 of the UCPR provide as follows:
11.1 Application of Part
(1) This Part applies to proceedings in the Supreme Court.
(2) For the purposes of this Part, a reference to Australia includes a reference to the external Territories.
11.2 Cases for service of originating process
(1) Originating process may be served outside Australia in the circumstances referred to in Schedule 6.
(2) This rule extends to originating process to be served outside Australia in accordance with the Hague Convention.
21There is no ambiguity whatsoever as to the exclusive application of Pt 11 to the Supreme Court. Just as Pt 11 has no application to the District Court (Flo Rida), it can have no application to this Court. Thus none of the exceptions contained in Sch 6 to the UCPR are available to the Court.
22In the present case, the evidence clearly demonstrates that Mr Bardo and Ms Yan not only may not ordinarily reside in Australia but were both overseas when the proceedings were commenced. Moreover, there is no real suggestion that either defendant left Australia for the purpose of evading service. In these circumstances, the Court's territorial want of jurisdiction cannot be overcome by an order for substituted service.
23The present facts may be contrasted with those in Filipowski v Frey [2005] NSWLEC 661, where the defendant was within the jurisdiction when proceedings were commenced because he had voluntarily submitted to it (at [22]-[23]).
24Accordingly, having discovered the error, the Court relisted the matter to give the council the opportunity to be heard. The council agreed with the Court's analysis concerning Pt 11 of the UCPR. The council then sought to argue that Pt 11A of the UCPR (dealing with service under the Hague Convention) could be of assistance, but later abandoned this submission in the absence of any evidence (as opposed to an assertion from the bar table) as to where Mr Bardo and Ms Yan were presently located (they were asserted to be in China), and whether the Hague Convention applied.