Nash v Stewart

Children and Young Persons (Care and Protection) Act 1998, s 109E Civil Procedure Act 2005, ss 14, 56, 57, 58 Criminal Procedure Rules (repealed), rule 8(5) LEGISLATION CITED : Justices Act 1902 (repealed), s 100AP(4) Local Court Rule 2000 (repealed), Part 2, rule 11 Service and Execution of Process Act 1992 (Cth), s 60 Supreme Court Rules 1970. rule 37.3(1) Uniform Civil Procedure Rules 2005, rules 10.5, 10.14, 10.20(1), 10.21(1), 10.26, 33.5(1), 33.6(1), 33.6(3)

In the Estate of Johanson (unreported, NSWSC, Powell J, 28 August 1992 CASES CITED : Registrar of the Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459 Sleiman v Afeich [2005] NSWSC 992

Gregory Dennis Nash - First Plaintiff Gregory Dennis Nash atf Newstart Superannuation Fund - Second Plaintiff John Thomas Stewart - First Defendant PARTIES : John Frederick Lord - Second Defendant Premium Collections Pty Ltd - Third Defendant Premium Advisory Pty Ltd - Fourth Defendant Rowan McCoy atf The STO Trust - Fifth Defendant J & L Marine Pty Ltd - Sixth Defendant

COUNSEL : Mr G D McDonald - Plaintiffs Mr C G Carroll - First, Second, Fifth and Sixth Defendants

SOLICITORS : Jade Lawyers - Plaintiffs Holman Webb - First, Second, Fifth and Sixth Defendants

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST

2008/278695 GREGORY DENNIS NASH v JOHN THOMAS STEWART & 3 ORS

JUDGMENT - ex tempore 21 May 2010; revised 24 May 2010

1 These proceedings are listed for hearing commencing on 26 May 2010. 2 The first, second, fifth and sixth defendants seek an order for substituted service in relation to a subpoena requiring the attendance at the hearing of a person whose affidavit they wish to read in their case. They are obviously apprehensive that the person's non-attendance and the consequent inability to make him available for cross-examination may result in a situation where the affidavit cannot be relied on. 3 I am not confident that the court can, consistently with the Uniform Civil Procedure Rules 2005, make an order for substituted service in respect of a subpoena requiring a person to attend to give evidence. 4 The rule concerning service of subpoenas is within Part 33. Rule 33.5(1) says: "A subpoena must be served personally on the addressee". 5 The words "must be served personally" - and particularly "must" - indicate, to my mind, that the only permitted mode of service of a subpoena is "personal service" as provided for in Division 3 of Part 10 of the rules. Division 3 of Part 10 is headed "Personal service". 6 Within Division 3 of Part 10, rule 10.20(1) makes it clear that personal service is compulsory, not optional, in cases where the rules require it. Rule 10.20(1) is as follows: "Any document required or permitted to be served on a person in any proceedings may be personally served, but need not be personally served unless these rules so require or the court so orders." 7 Thus, where the rules require personal service, the relevant document "needs" to be served personally.

8 Also within Division 3 of Part 10, rule 10.21(1) then states the general method of effecting personal service on a person: "Personal service of a document on a person is effected by leaving a copy of the document with the person or, if the person does not accept the copy, by putting the copy down in the person's presence and telling the person the nature of the document." 9 The provisions about personal service in Division 3 of Part 10 include a provision that deals with service of a subpoena for attendance and relaxes, to some extent, the procedure otherwise required. I refer to rule 10.20(2)(c) which allows such a subpoena to be left at the person's business or residential address with someone apparently of or above the age of 16 years. But this provision applies only to proceedings in the Local Court; and significantly, I think, service in that particular manner is, by rule 10.20(4), deemed to be "personal service for the purposes of rule 33.5(1)". That, to my mind, reinforces the supremacy of rule 33.5(1) in relation to subpoenas requiring attendance. 10 Provision for orders for substituted service is made by rule 10.14. That rule is within Division 2 of Part 10 headed "Manner of service". Division 2 begins, in rule 10.5, by setting out a number of modes of service that may be adopted in relation to "a document", but with the opening qualification, "Subject to these rules". 11 That qualification makes it clear that any particular mode of service required elsewhere in the rules is not detracted from by rule 10.5. Again, therefore, the supremacy of rule 33.5(1) in relation to subpoenas is recognised and reinforced. 12 It is then necessary to look at the terms of rule 10.14 itself: "(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."

13 Rule 10.14 thus relates to a "document" that "is required or permitted to be served on a person in connection with any proceedings". It allows the court to dispense with service and to direct some other method of notification "instead of service". Significantly, I think, rule 10.14 does not, in terms, refer to a document required or permitted to be served personally. For that reason, and because it is located in Division 2, dealing with service generally, and not Division 3, dealing with personal service, I have strong reservations as to whether rule 10.14 allows the court to dispense with service and order some other method of notification where the rules positively require personal service.

14 It is, I think, noteworthy that the statutory provisions applying to the Supreme Court contain no provision such as the former s 100AP(4) of the Justices Act 1902 that allowed rules to be made regarding substituted service of subpoenas; nor is there any equivalent of the of the former rule 11 in Part 2 of the Local Court Rule 2000 which empowered the court to order substituted service of a subpoena. 15 Another provision of the Uniform Civil Procedure Rules reinforces the impression that personal service is the only permitted mode of service of a subpoena ad testificandum. Rule 33.6(1) says that an addressee need not comply with the requirements of a subpoena to attend to give evidence unless conduct money has been "handed or tendered to" the person by a particular time. These are notions wholly consistent with personal service in the full and literal sense and sit uncomfortably with any other method of service.

16 I note that in Registrar of the Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459, it was held that payment or tender of conduct money might be made through someone else; but the rule under consideration there (rule 8(5) of the Criminal Procedure Rules of the District Court, now no longer in force) spoke of payment or tender. Those rules were in a form previously common (see, for example, rule 37.3(1) of the Supreme Court Rules 1970 as they stood before the revision of 1 May 2004 to accommodate the harmonised subpoena rules) and still found in some statutes (see, for example, s 109E of the Children and Young Persons (Care and Protection) Act 1998 and s 60 of the Service and Execution of Process Act 1992 (Cth)). Under those provisions, the condition is that conduct money has been "paid or tendered". 17 A quite different dimension is added by the word "handed", as distinct from "paid", in the provision with which I am now concerned. The words "handed or tendered to", read together, connote the placing of money into the person's hand or offering it in such a way that the person may take it if he or she chooses to do so. 18 Mr Carroll of counsel referred to Sleiman v Afeich [2005] NSWSC 992 where Hamilton J said, without discussion or analysis, that earlier orders made by another judge with respect to a subpoena "may be characterised as either orders for substituted service within rule 10.4 of the UCPR, or as orders dispensing with a requirement of the rules of court on a specified condition pursuant to section 14 of the CPA". It is clear, I think, that Hamilton J intended to refer to rule 10.14, not rule 10.4, and I read his Honour's observations in that light. However, as I have said, there is no discussion or analysis in that case which, in any event, did no more than speculate upon possible bases on which earlier orders may have been made. 19 In relation to the first possible basis, I am, for the reasons I have stated, not persuaded that, as a matter of construction, rule 10.14 is applicable in a case to which rule 33.5(1) applies. Another example of the expression of strong reservations as to whether substituted service could be ordered where the rules require personal service is found in In the Estate of Johanson (unreported, NSWSC, Powell J, 28 August 1992), which concerned a citation to take probate in respect of which a requirement of personal service applied. 20 As to the possibility of dispensing with the rules of court pursuant to s 14 of the Civil Procedure Act 2005, it must be acknowledged that the s 14 power is a broad one and, as counsel pointed out, must, in the light of s 57 and s 58, be exercised so as to promote the objectives stated in s 56. 21 But a subpoena to attend to give evidence is something that carries penal consequences in case of disobedience. Someone who does not attend can be arrested and may be punished for contempt. That, I have no doubt, is why personal service is required, and why no clear method (or, as I think is probably the case, no method at all) is provided for allowing some remoter and less secure method of notification. Penal consequences should not be triggered by any such remoter and less secure method.

22 In any event, the only power the court has under s 14 of the Civil Procedure Act is a power to "dispense with any requirement of the rules of court". It is by no means clear how this would justify not only putting to one side the requirement of personal service but also sanctioning as valid and effective some alternative method of notification as a potential basis for arrest and committal. Section 14 does not allow the court to re-write the rules of court. 23 I am not prepared to make an order for substituted service as sought by the applicants. I do note, however, that the evidence read on the application may well justify two relevant conclusions: first, that the person concerned has actual knowledge of the subpoena and its requirements; and, second, that the person is "keeping house". Those factors are relevant to the operation, in ways potentially beneficial to the applicants, of rule 33.6(3) and rule 10.26 respectively.

24 The latter provision (which is within Division 3 of Part 10 concerning personal service) is worth quoting in full: "(1) If a person keeps house (that is, remains in premises to which a person attempting service cannot lawfully or practicably obtain access), the person attempting service may serve the document on the person keeping house: (a) by doing one of the following: (i) placing the document in the mail-box for the premises, (ii) affixing the document to an outer door of the premises, (iii) if the person attempting service cannot lawfully or practicably obtain access to any such mail-box or door, affixing the document to some part of the premises, or to some fence or wall surrounding the premises, as near as practicable to the principal door or entrance to the premises, and (b) within 24 hours after doing so, by posting a notice to the premises, addressed to the person keeping house, informing the person of the fact that the document has been so placed or affixed.

(2) Service in accordance with subrule (1) is taken to constitute personal service."

25 The alternative means of notification allowed here, in cases where personal service is required, are of kinds that would typically be sanctioned by an order for substituted service. The existence of this specific provision within Division 3 of Part 10 concerning personal service provides another reason for thinking that an order for substituted service is not contemplated in relation to a subpoena. 26 I order that the time for service of a subpoena for attendance upon James Michael Douglass be abridged to 5 pm on 25 May 2010. 27 Otherwise, the notice of motion is dismissed. **********

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