Plaintiff v First Defendant

1 Ms Fiona Austin appeals ex parte from the decision of Clayton JR dismissing applications for substituted service on the first defendant.

2 Ms Austin is the plaintiff in two judicial review proceedings remaining before this Court. In these proceedings, she seeks review of the decisions of the Magistrates' Court of Victoria and the County Court of Victoria, concerning intervention orders obtained by the first defendant Oscar Dobbs.

3 Mr Dobbs is yet to be served with Supreme Court proceedings. Ms Austin has effected service on the County Court and the Magistrates' Court. They have filed appearances on the basis that they will not take an active role and will abide by the decision of the Supreme Court in accordance with the principles in R v Australian Broadcasting Tribunal; Ex parte Hardiman.[1]

4 Ms Austin is the subject of interim intervention orders made in the Melbourne Magistrates' Court in August and September 2016, and September 2017 under the Personal Safety Intervention Orders Act 2010 (Vic) ('PSIO Act'). The intervention orders were made on the application of Mr Dobbs. She says that they were made ex parte in her absence. She appealed to the County Court against the intervention order made in September 2017, but her appeal was out of time.

5 Ms Austin is also the subject of criminal proceedings in the Magistrates' Court arising out of alleged breaches of the intervention orders. She strongly resists the intervention orders and criminal proceedings.

6 Proceeding S ECI 2018 00234 seeks judicial review of the decision of Judge Taft of the County Court made on the 6 June 2018, to strike out an appeal against the interim intervention order granted by the Melbourne Magistrates' Court in September 2017, on the ground that the appeal was lodged out of time.[2]

7 Ms Austin seeks judicial review of this decision on the basis that s 98 of the PSIO Act provides that:

the provisions of that Act_,_ the Magistrates' Court Act 1989 (Vic), the Children's Youth and Families Act 2005 (Vic) so far as applicable and with any modifications and adaptations as are necessary extend and apply to appeals [to the County Court] under [pt 3 div 11 of the PSIO Act].

8 Ms Austin contends that s 98 imports the power to extend the 30 day period within which appeals must be filed under s 93(2)(c) of the PSIO Act_._

9 Alternatively, the Ms Austin relies on s 263 of the Criminal Procedure Act 2009 (Vic), which permits the County Court to allow late notices of appeal filed under that Act to proceed in exceptional circumstances, provided that the respondent is not materially prejudiced because of the delay.

10 Section 263 is found in pt 6.1 of the Criminal Procedure Act 2009 (Vic). Part 6.1 is the part of that Act that makes provision for appeals from the Magistrates' Court to the County Court in proceedings subject to the operation of that Act.

11 Proceeding S ECI 2018 00235 is an application for judicial review of the decision of Magistrate Keil on 15 May 2018 to adjourn the final intervention order hearing. It seeks that the decision be quashed and remitted back to the Magistrates' Court to be heard after the appeal to the County Court has taken place.

12 Proceeding S ECI 2018 00261 was an application for judicial review of the decision of Magistrate Keil concerning the criminal charges heard on 15 May 2018. The proceeding was summarily dismissed by Derham AJ on 10 December 2018.

13 The final intervention order hearing is now listed in the Magistrates' Court on 21 January 2019. Ms Austin also seeks an injunction restraining this hearing until after the appeal to the County Court has been completed.

14 Ms Austin submits that there are intervention orders against her that prohibit her from contacting or communicating with Mr Dobbs by any means. The intervention orders also restrain her from attempting to locate Mr Dobbs.

15 Ms Austin made applications for orders for substituted service on Mr Dobbs in both applications by ex parte summonses dated 3 July 2018. The summonses sought orders for Victoria Police to effect substituted service on Mr Dobbs. However, the affidavits in support request the Supreme Court to serve the relevant judicial review documents on Mr Dobbs using the contact details provided by him to the County and Magistrates' Courts.

16 The applications for substituted service were heard ex parte by Clayton JR on 25 July 2018.

17 Clayton JR handed down a reserved decision on 30 August 2018.[3] She held that the Supreme Court of Victoria could not take on the role of process server in a proceeding. It was inconsistent with the Court's role. Equally, it was not appropriate for the Court to make an order requiring that Victoria Police serve the proceedings on Mr Dobbs. She added that Victoria Police was a very large organisation with many important responsibilities. Service of documents in civil proceedings was not a police responsibility.

18 Clayton JR observed that there was no requirement for Ms Austin to serve the documents personally. One commonplace means of effecting personal service is to engage the services of a process server. She stated that it was only after all lawful and reasonable steps have been taken to effect service, and where service has not been able to occur, that an application for substituted service can be properly considered. There was no material before the Court that demonstrated what steps Ms Austin had taken to effect service, or whether those steps were effective. On the face of it, it appeared that no steps to achieve service had been taken, and no inquiries made of a process server prior to making the applications. Clayton JR dismissed the applications.

19 Under r.84.05(4) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('the Rules'), an appeal from a Judicial Registrar to a Judge is an appeal de novo.[4] The applications for substituted service must be considered afresh on the basis of the evidence before the Court on the hearing of the appeal.

20 Ms Austin submits firstly, that she does not have the financial means to engage a process server, and secondly, that she is not permitted to serve the proceedings personally.

21 Ms Austin has provided considerable additional evidence in support of her application following the decision of Clayton JR.

22 As to financial circumstances, Ms Austin states in an affidavit sworn on 6 September 2018, that she is unemployed, and unable to work in her profession as a teacher. As part of her bail conditions, she is required to live with her parents at a small, remote Victorian town. There are no jobs available there.

23 Ms Austin deposes that she receives Newstart Allowance of $277.30 a week from Centrelink. She says that the Newstart Allowance is low and does not permit of any savings. It takes more than one week of Newstart Allowance to cover the driving expenses, travel and accommodation costs to attend court in Melbourne for one day. She has no assets or savings, and cannot afford dental treatment for her teeth. She has a credit card debt of $9,956.09 as at 4 September 2018.

24 At the hearing before me on 21 November 2018, I gave Ms Austin leave to file an additional affidavit as to her dealings with process servers, and as to the likely costs of retaining a process server to effect service on her behalf.

25 In an affidavit sworn on 29 November 2018, Ms Austin said that she now receives $279.50 a week in Newstart Allowance. She estimates the cost of attending court at $300 a day. She does not have the money to pay for basic living expenses. She estimates her weekly living costs at $471.50, or $241.50 with car and entertainment costs excluded. She expects interest of $200 will be added to her credit card debt on 30 November 2018.

26 In November 2018, Ms Austin obtained quotations and information from three process servers.

(a) Melbourne Investigations Pty Ltd, advised that the cost at locating a person of interest in a court related matter was $980 plus GST. This would take 7-14 business days.

(b) Servedoc, a process server based in Queensland, advised that the cost of serving documents in Melbourne was $300 plus GST, including up to three attempts at service, printing, searches, express postage and a sworn affidavit of service.

(c) InfoQuest, a process server which operates in three States including Victoria, advised that it provided investigative services on a 'no find - no fee' basis. Successful location fees were variable. The service of documents was generally completed for $200 inclusive of printing. However, if the subject was located in a rural area, the charges could be more.

Rule 6.10(1) - Substituted service

27 Rule 6.10(1) of the Rules empowers a judge to make orders for substituted service, but only if personal service is impracticable. It provides:

Where for any reason it is impracticable to serve a document in the manner required by these Rules, the Court may order that, instead of service, such steps be taken as the Court specifies for the purpose of bringing the document to the notice of the person to be served.

28 Rule 6.10(1) has a long history, and there are many past decisions as to its operation.[5] For substituted service to be ordered, the rule requires that service of a document in the manner required by the Rules is impracticable.[6] In every application it is necessary to apply this requirement to the individual circumstances of the case.

29 In Ricegrowers' Co-operative Ltd & Anor v ABC Containerline NV & Ors,[7] Tamberlin J referred to the interpretation of the corresponding UK rule, to the effect that the word 'practicable' should be given a wide meaning. The simple question was whether it was 'practicable' to use one of the prescribed methods.[8]

30 Moreover, as Bell J observed in Carter Holt Harvey v David,[9] the expression 'for any reason' found in r 6.10(1) is broad and should be given a wide meaning.[10]

31 Rule 6.10(1) however, must be read and applied in the context of the Civil Procedure Act 2010 (Vic) ('the Civil Procedure Act').[11] Under s 7(1) of the Civil Procedure Act, the overarching purpose of that Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. The Civil Procedure Act directs that the construction and application of r 6.10(1) as with other rules of court be undertaken having regard to the overarching purpose.[12]

32 Speaking of the equivalent New South Wales Civil Procedure Act, in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd,[13] the High Court said that the clear intention and expectation of the Civil Procedure Act is that courts use their broad powers under the Civil Procedure Act to facilitate the overriding purpose. The High Court said that achievement of the overriding purpose may require a more robust and proactive approach on the part of the courts. Unduly technical and costly disputes about non-essential issues are to be avoided. The focus is upon facilitating a just, quick and cheap resolution of the real issues in the proceedings, although not at all costs.[14]

33 Likewise in Yarra Australia Pty Ltd v Oswal,[15] the Victorian Court of Appeal observed that the court was directed to further the overarching purpose by having regard to the objects and matters articulated in s 9 of the Civil Procedure Act. This includes the efficient use of judicial and administrative resources, and dealings with the proceeding in a manner proportionate to the complexity, and importance of the issues and amount in dispute.[16]

34 Here the real issue is whether there should be judicial review of the decisions of the County Court and Magistrates' Court.

35 I am satisfied on the evidence now before the Court, that Ms Austin is a person in financial hardship. Her only income is the Newstart Allowance, and this is inadequate to meet weekly living expenses. She cannot afford car or entertainment costs. She cannot afford dental treatment. She has no assets or savings on which she might rely. She has a credit card debt approaching $10,000 which she cannot repay without obtaining employment. She is required by bail conditions to live with her parents at a remote town. There is no available employment there. She is unlikely to be able to seek employment as a teacher in the foreseeable future.

36 While Ms Austin would be willing to effect service personally, this would most likely lead to a contravention of the intervention orders. The intervention orders restrain her from contacting or communicating with Mr Dobbs by any means, or from getting another person to do anything which she cannot do under the orders.

37 The cost of locating and serving Mr Dobbs is hard to assess. It might be as low as $350 including GST, but it might also be well over $1,000. Ms Austin cannot afford either sum.

38 I am satisfied that it is impracticable for these proceedings to be served in the manner required by the Rules. It is impracticable because Ms Austin is a person in financial hardship who cannot afford to retain the services of a process server to locate and serve Mr Dobbs, and is not permitted under the terms of the intervention orders to do so herself. It is appropriate that orders be made under r 6.10(1). Substituted service can be effected by email at minimal cost.

39 Mr Dobbs' spouse is a successful business person whose business telephone number and email address are known. I am satisfied that service of the proceedings by email, together with a copy of the orders of the Court authorising substituted service, these reasons for decision, and a text message advising Mr Dobb's spouse of the order for substituted service, will be effective in bringing the proceedings to the attention of Mr Dobbs.

40 He is very likely already aware of the existence of the proceedings because of past attempts by Ms Austin to effect service.

41 The appeal will be allowed, the orders made on 30 August 2018 are set aside, and orders made for substituted service on Mr Dobbs.

[1] [1980] HCA 13; (1980) 144 CLR 13.

[2] PSIO Act s 93(2)(c) requires the notice of appeal to be filed within 30 days after the relevant decision was made.

[3] Ruling of Clayton JR dated 30 August 2018.

[4] See also Supreme Court Act 1986 (Vic) s 113M(4)(a).

[5] See Porter v Freudenberg [1915] 1 KB 857; Hilaire v Harvie (1951) 68 WN (NSW) 61; London Discount & Mortgage Bank v Daish [1890] VicLawRp 68; (1890) 16 VLR 325; Zinc Corp Ltd v Hirsch [1916] ArgusLawRp 64; (1916) 22 ALR 294; Re a Judgment Debtor [1937] Ch 137; Deverall v Grant Advertising Inc [1955] Ch 111; Abbey National Plc v Frost [1998] 2 All ER 321; O'Neil v Acott [1988] NTSC 68; (1988) 59 NTR 1.

[6] See Kendell v Sweeney [2002] QSC 404; Citigroup Pty Ltd v Weerakoon [2008] QDC 174; Paragon Group Ltd v Burnell [1991] Ch 498; Re Conan Doyle's Will Trusts; Harwood v Fides Union Fiduciaire [1971] Ch 982.

[7] [1996] FCA 1663; (1996) 138 ALR 480.

[8] Ibid 482, citing Paragon Group Ltd v Burnell [1991] Ch D 498, 507 (Lloyd LJ).

[9] [2015] VSC 393.

[11] Civil Procedure Act 2010 (Vic) s 8.

[12] Ibid ss 9, 11.

[13] [2013] HCA 46; (2013) 250 CLR 303.

[15] [2013] VSCA 337; (2013) 41 VR 302.