Paragon Group Ltd v Burnell

icitors on the record for the fourth defendant in proceedings VG 70/96 in this Court, Den Norske Bank (Luxembourg) S.A. v The Ship "Martha II". That vessel has been sold but the resulting fund has not yet been distributed. They have no instructions to accept service in this proceeding (No. NG 276 of 1996) The fourth defendant has never carried on business in Australia. It is not registered in Australia as a foreign corporation nor does it have any assets in Australia. As regards the fourth defendant, the relief sought in the Amended Application is damages pursuant to s82 of the Trade Practices Act 1974 (Cth) by reason of alleged misleading conduct. This conduct is said to be not informing the plaintiffs, prior to the loading of containers on board the Martha II, that there were claims against the vessel and/or the defendants which were likely to be the subject of proceedings leading to the possible arrest of the vessel with consequential further delay in delivery of the consignments. Although the application was made ex-parte, when I gave the plaintiffs leave to file a Notice of Motion seeking substituted service and preliminary discovery, returnable on 25 July, I directed the plaintiffs to notify the solicitors of this motion. Last Thursday, 25 July 1996, I gave the solicitors leave to appear by their counsel Mr Thompson because I considered that his submissions may be of assistance to the Court. He presented submissions in opposition. The matter was part-heard on that day. I will first address the question of substituted service. Substituted Service The meaning of the expression "practicable" for the purpose of a substituted service application under the corresponding UK rule was considered by the Court of Appeal in Paragon Group Ltd v Burnell (1991) 2 All ER 388. Lloyd LJ considered that the word "practicable" should be given a wide meaning and that the simple question was whether it was "practicable" to serve by one of the prescribed methods: (at 390). The expression "not practicable" is in my view essentially identical in meaning to the term "impractical". In order to establish impracticality some attempt, at least, should be made to effect service in accordance with the Rules or evidence should be led that it is so obviously futile as not to warrant an attempt at service. In this case, there is no evidence of obvious futility nor has any attempt been made to serve in accordance with the Rules. In O'Neil v Acott (1988), 59 NTR 1, the Full Court of the Supreme Court of the Northern Territory considered the words "impracticable to serve". Asche CJ with whom Nader and Rice JJ concurred, referred to the remarks of Mason J in Foxe v Brown (1984) 58 ALR 542, where his Honour said: "Furthermore, the question is not whether reasonable effort has been shown by the defendant over a particular period but whether at the date on which the application for substituted service is made, the plaintiff, using reasonable effort, is unable to serve the defendant personally." (Emphasis added) The evidence in the present case as to impracticality is insubstantial. Mr Mitchell, the solicitor for the plaintiffs, stated in an affidavit of 25 July 1996 that he had made enquiries and been informed by an officer of the Department of Foreign Affairs and Trade, in Canberra, that service of court process on the fourth defendant in Luxembourg, through diplomatic channels, could take more than three months. There was no suggestion that such service could not be effected. The departmental officer stated that there was no agreement between Australia and the Grand-Duchy of Luxembourg.