The Facts
14 The facts, for present purposes, need not be explored in any great detail.
15 It is sufficient to note that it is claimed that Mr Evans has been responsible for the publication on the internet of a series of websites. Each of those websites are said to set forth material that is "offensive" or "pornographic". Addresses which are set forth in a variety of ways employ the word "SPEEDO". Thus, for instance, one website provides the following address:
http://www.speedomoviespage.com
Another provides the following address:
http://www.speedosnextdoor.com
16 Searches of the various websites have disclosed "Dave Evans" as the "contact".
17 Letters and telephone calls were sent and made to a number of addresses with a view to identifying an address at which the Originating Application and Statement of Claim could be served on Mr Evans.
18 One email was sent on 16 August 2011 to the following address:
daveevans@swimmerboyz.com
The email attached a "letter of demand and draft court documents". That email provoked a response from "Dave 'Speedo' Evans" in the following terms:
Mr. Gourley,
Is that your real name? It sounds like something a dog would bark up - say it with a cough.. (cough) uhdett Gowly.
I have no doubt that you are a very intelligent fellow - being a partner and all.
I see your paper work is from Corrs, Cambers and Westgarth. I've got a feeling Corrs, Chambers and Westgarth aren't in favour of gay marriage. No need for you guys to be haters. You aren't a man until you've had one right?
Thank you for sending that paperwork.
I wanted to let you know that this is a valid email address with regard to correspondence.
Perhaps you should read my blog… if you took the time you'd not only get some fees but you'd learn that I don't live in Queensland. Dave Evans doesn't have an Australian passport, my business is based in the BVI and I look forward to seeing how the NSW Federal Court deals with the jurisdiction issues.
The 'Speedo Corporation' is your client. It is an Australian brand and it should be interesting to see the 'reach' of the NSW Federal Court in imposing their decision regarding a 'generic' term.
Since you are making your living from 'Speedo' I hope to see you at the local pool speedo'ing it up Mr. Gourley.
Sincerely,
Dave 'Speedo' Evans
The content of that response may be left to one side. Of relevance is the fact that the Applicants have identified an email address at which the Respondent may be contacted and has indeed been contacted and has been accepted by Mr Evans as "a valid email address". Subsequent requests for the provision of a residential address at which personal service could be effected have been unsuccessful.
19 On 29 August 2011 the Applicants' solicitor forwarded a copy of the Originating Application and Statement of Claim as filed to the same email address as that used on 16 August 2011. The Respondent has confirmed receipt of those documents.
20 The unsuccessful attempts to secure a residential address for service, it is concluded, make it "not practicable to serve a document" on the Respondent personally within the meaning of and for the purposes of both Rules 10.23 and 10.24. The evidence also establishes the Originating Application and the Statement of Claim have "been brought to the attention of" the Respondent for the purposes of Rules 10.23(b).